2016 PLP 940 (YLR)

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 Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others, 1998 SCMR 2268, the Hon'ble Supreme Court has held that dispossession of licensee by Civil Aviation Authority from Government property on breach of contract by such licensee. Agreement between licensee and the authority also had the clause of prior notice and opportunity for a lawful entry was necessary under the law, but said authority had not strictly satisfied such pre-requisites, it could hardly be questioned that impugned action of authority fell beyond the scope of the contractual stipulations and statutory mandates. This case law is also distinguishable as it relates to contractual obligations between private parties and public functionaries; as such, not relevant to the circumstances and facts of instant petitions. iv) In case of Dr. Muhammad Farooq Memon and 6 others v. District Coordination Officer/President District Red Crescent Branch, Hyderabad, 2009 YLR 2414, it has been held that the petitioner was Chairman of Red Crescent Society, which was established under the Red Crescent Society Act, 1920, as such the society is creation of the Statute. The District Coordination Officer removed the Chairman and also re-appointed members of executive committee and elections were postponed so that after making fresh members it could be rigged and for that purpose membership form was also changed, hence said removal was set aside. Whereas, the Public School Hyderabad is not creation of any statute and it has its own Constitution, Rules and By-Laws, 1979 to conduct its affairs, as such this case law has no relevancy to the peculiar circumstances of present controversy and also barred by the principles laid down by the Hon'ble Supreme Court in judgment reported in PLD 2010 SC 676. v) In case of Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmed and 3 others, 1995 SCMR 1593, Hon'ble Supreme Court has observed that allegation of mala fides had been enumerated by Civil Servants against higher official of his Department which the Service Tribunal had accepted. Supreme Court declined to interfere with such finding of fact by the Tribunal. This case law is distinguishable and not applicable upon the peculiar facts and circumstances of present petitions. vi) In case of Karachi Development Authority and another v. Wali Ahmed and others, 1991 SCMR 2434, the Hon'ble Supreme Court has held that service of a person with a statutory corporation being based on contractual relationship, same was to be governed by the law of master and servant. Remedy for illegal removal from service was to file suit for damages. The Hon'ble Supreme Court in its judgments reported in PLD 2010 SC 676 and PLD 2006 SC 602, has held that only the employees of the organizations having statutory rules, can invoke constitutional jurisdiction of the High Court. The cited judgment also relates to "Statutory Body"; hence not applicable in its terms to the instant petitions. vii) In case of Walayat Ali Mir v. Pakistan International Airlines Corporation, 1995 SCMR 650, Hon'ble Supreme Court has held that the dictum that no employee has vested right in promotion is although correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent authority, would entitle aggrieved person to challenge the same. Authority instead of promoting the employee, inducted the dismissed employee of the Corporation into service and to a position wherein the employee was to be promoted. Such order of competent authority was arbitrary, unfair and devoid of good faith. This judgment has no relevancy to the controversy agitated in present petitions. viii) In case of Engineer Samiullah Mughal v. Chairman, Pakistan Engineering Council and 2 others, 2009 PLC (CS) 280, it has held that removal of a Civil Servant who was charged with allegations of unauthorized absence from duty and unpunctual in attending office, and said allegations were denied by petitioner in his explanation to show cause notice, the imposition of such penalty by authority without holding inquiry into alleged charges, thus, authority had acted unfairly. The Pakistan Engineering Council was Statutory Body, hence, this judgment is not applicable upon the instant controversy. ix) In case of Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others, PLD 2002 SC 303, Hon'ble Supreme Court has held that legal protection of a bona fide purchaser could not be claimed under an invalid transaction and interim injunction was granted by the Court under Order XXXIX, Rules 1 and 2, C.P.C. This judgment relates to the suit for permanent injunction and there was a case of violation of permanent injunction, whereas, in present controversy the respondent No.1 has complied the Court order and petitioner Abdul Hameed was permitted to continue his office till issuance of second notification with the approval of competent authority, as such this case law is not applicable upon present petitions. x) In case of Bakhtawar and others v. Amin and others, 1980 SCMR 89, the Hon'ble Court has held that stay order was granted by Hon'ble Supreme Court on undertaking given by the petitioner, and water course certainly existed at the spot, but same has been demolished by the petitioner which is deliberate violation of such undertaking by the petitioner, held, serious notice can be taken under Order XXXIX, Rule 2(3), C.P.C. This judgment relates to violation of injunction order passed by the Court on undertaking given by same party, hence this case law is not relevant to the peculiar circumstances of present petitions. xi) In case of Noor Muhammad v. Civil Aviation Authority and another, 1987 CLC 393, it has held that defendant authority was issued notice about the pendency of an application seeking injunction against it and authority was called upon to show cause why stay order should not be issued. Defendant forcibly dispossessed the plaintiff from the shop in question, so the possession of shop was ordered to be restored to the plaintiff. The circumstances of cited case law are distinguishable from the controversy going on between the parties in present petitions. xii) In case of Civil Aviation Authority v. Noor Muhammad, PLD 1988 Karachi 401, it has held that in suit for declaration and permanent injunction with application for ad-interim injunction, after service of summons and notice in respect of filing of said suit and application, Court could undo any act on part of defendant which he might have taken with mala fide after service of notice of injunction application. This judgment is also distinguishable and is not relevant to the circumstances of the present petitions.

15. At this juncture, we would also like to discuss case cited by the learned A.A.G. Sindh as under:-- (i) In Suo Motu and Human Rights cases, PLD 2011 SC 277, the Honourable Supreme Court has held that record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. S.14 of the Civil Servants Act, 1973 as well as instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re- employment" and the judgments of the Superior Courts on the subject were not considered/adhered to, held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit otherwise it would not be possible to provide an effective machinery in law particularly in Police Department to ensure law and order, to be peace in the country, at the same time to avoid violation of the relevant provision of law which was tantamount to blocking the promotion of the who had also served in the forces and were waiting for their promotion but they were not getting chance because of their employment/ contract awarded to the retired officers. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (ii) In case of Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab and others, PLD 2010 SC 841, Honourable Supreme Court has held that petitioners were appointed on contract basis, who assailed the act of authorities for advertising posts in question for regular appointments, plea raised by petitioners was that their services could not be terminated by authorities. Having accepted conditions of service, petitioners had no locus standi to file Constitutional petitions seeking writs of prohibition and mandamus to authorities to refrain from terminating their services and to retain them on their existing posts on regular basis. High Court has rightly declined to issue any writ against authorities. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (iii) In case of Trustees of the Port of Karachi v. Saqib Samdarni, 2012 SCMR 64, the Hon'able Supreme Court has held that respondent was employed on a contract of one year, whereafter, he was terminated from service and Service Tribunal reinstated him in service. Respondent was not appointed as regular employee against any particular quota to give him a valid cause of action. Service Tribunal was silent that termination of service of respondent violated any of his vested right, therefore, his reinstatement under the judgment passed by Service Tribunal was not validly ordered. Appeal was allowed and judgment of Service Tribunal was set aside. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (iv) In case of Government of Balochistan, Department of Health v. Dr. Zahida Kakar and 43 others 2005 SCMR 642, Hon'ble Supreme Court has held that contract appointment terminated on the expiry of contract period or any extended period on the choice of employer or appointing authority, prima facie, such appointment does not create any vested right. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (v) In case of Muhammad Ali and 11 others v. Province of KPK and others, 2012 SCMR 673, Hon'ble Supreme Court has held that appointments made without advertisement of vacancies, inviting of applications and completion of codal formalities, termination of service of such employees without providing them opportunity of hearing, held, that "He who seeks equity must do equity" and "approach court with clean hands" and "Ill-gotten gains could not protected". Such employees had got their appointments through backdoor, thus, could not agitate any grievance on pretext of denial of due opportunity of hearing to them. Appeals filed by employees were dismissed in the circumstances. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (vi) In case of Pakistan International Airline v. Tanveer-ur-Rahman, PLD 2010 SC 676, Hon'ble Supreme Court has held that although the Corporation was discharging functions in connection with the affairs of Federation, yet aggrieved persons could not approach High Court by invoking its constitutional justification. If any adverse action was taken by employer in violation of statutory rules, only then such action should be amenable to Constitutional jurisdiction but if such action had no backing of statutory rules then principle of 'Master and Servant' would be applicable and such employees had to seek remedy permissible before the court of competent jurisdiction. Rules laid down in the judgments of Supreme Court in Muhammad Mubeen-us-Salam's case, reported as PLD 2006 SC 602 and Muhammad Idrees's case reported as PLD 2007 SC 681, would be applicable to ordinary person filing petition by invoking jurisdiction of High Court under Article 199 of the Constitution. Pakistan International Airlines Corporation was performing functions in connection with the affairs of the Federation but since services of employees were governed by the contract executed between both the parties and not by statutory rules framed under S.30 of Pakistan International Airlines Corporation Act, 1956, with prior approval of Federal Government, therefore, they would be governed by the principle of 'Master and Servant'. Appeal was disposed of accordingly. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (vii) In case of Hashwani Hotels Limited v. Federation of Pakistan and others, PLD 1997 SC 315, the Hon'ble Supreme Court has held that it is a well settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. The principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it. The dicta laid down in the above case law is applicable on the circumstances of instant C.P. (viii) In case of Federation of Pakistan and others v. Muhammad Saifullah Khan and others, PLD 1989 SC 166, the Hon'ble Supreme Court has held that it is true that the concept of national interest taking precedence over rights of the individuals which has been given effect to by us in a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration. The dicta laid down in the above case law is applicable on the circumstances of instant C.P.

16. Perusal of the record and consideration of arguments advanced by the parties supported with case law, reflects that in C.P No.923 of 2011, petitioner Professor Abdul Hameed has averred that notification dated 21.05.2011, for re-constitution of the Board of Governors is politically motivated and abuse of process of law, and same was not issued with the approval of competent authority i.e. Chief Minister Sindh, and Incharge Education Secretary has no authority to dissolve the Board of Governors which was constituted with the approval of Chief Minister Sindh. Considering the peculiar circumstances regarding issuance of impugned notification by the Incharge Education Secretary being incompetent person, this Court vide order 02.06.2011, suspended the operation of the impugned notification till next date which was honored by the respondent and the petitioner maintained his same office and continued his assignment by performing his official duties without any interference of the respondent, however, Education Secretary, Government of Sindh after obtaining approval of competent authority i.e. Chief Minister Sindh, issued another notification dated 03.08.2011, whereby a new Board of Governors and its Chairman were appointed and the petitioner Professor Abdul Hameed was relieved.

17. For appropriate conclusion, notifications dated 21.05.2011 and 03.08.2011, issued by Government of Sindh, Education and Literacy Department are reproduced as follows:-- "GOVERNMENT OF SINDH EDUCATION AND LITERACY DEPARTMENT Karachi, dated, the 21st May, 2011 NOTIFICATION No.SO(C&PS)10(6)/1997: On the expiry of tenure the constitution of Board of Governors of Public School Hyderabad stand dissolved and all the non-official members including Chairman, Board of Governors stand relieved with immediate effect. II The Principal Public School Hyderabad is allowed to look after the routine affairs of School till a new body of Board of Governors is notified. WASIM AHMED URSANI INCHARGE SECRETARY EDUCATION." "GOVERNMENT OF SINDH EDUCATION AND LITERACY DEPARTMENT Karachi; Dated 3rd August, 2011. NOTIFICATION No.SO(C&PS)10(6)1997(Pt):

On the recommendation of the Inquiry Committee and with the approval of competent authority i.e. Chief Minister, Sindh, the following actions/decisions are notified regarding Public School Hyderabad with immediate effect. (1) The existing Board of Governors stands dissolved as it has completed its tenure on 26.04.2011. (2) Mr. Abdul Hameed Memon non-official Chairman of Board of Governors of Public School, Hyderabad stands relieved from his duties. (3) The reconstitution of new Board of Governors, Public School, Hyderabad for next two years with effect from 03.08.2011, to 02.08.2013, is as under:- Official Members: i) Secretary Education and Literacy Department Chairman ii) Additional Secretary (Acd & Trg), Edu-cation Department, Member iii) Principal Public School, Hyderabad. Member/ Secretary Non-Official Members: i) Mr. Abdul Jabbar Khan. ii) Prof: Muhammad Yasin Khan, Principal (Retired) iii) Mr. Abdul Ghaffar Siddiqui iv) Mr. Nizamuddin Memon, Retired Director Schools v) Mr. Pervez Ahmed Ansari vi) Ms. Gulnaz Shaikh, Principal (Retired) vii) Mr. Amanullah Sial. MUHAMMAD SIDDIQUE MEMON SECRETARY TO GOVT. OF SINDH"

18. Petitioner Professor Abdul Hameed filed application for contempt of Court vide C.M.A. No.6318 of 2011 in C.P. No.923 of 2011 against the respondent alleging violation of order dated 02.06.2011, and also challenged the notification dated 03.08.2011, by filing C.P. No. 1349/2011, claiming it to be issued by the respondent without lawful authority having no legal effect.

19. The operative part of order dated 02.06.2011, passed by this Court in C.P. No. D-923 of 2011 is reproduced as under:-- "In the larger interest of justice, we allow 10 days' time to file comments, however, suspend the operation of Notification dated 21st May 2011 till next day of hearing when this petition shall be finally heard and decided."

20. Crux of the contention is that the petitioner Abdul Hameed was appointed as Chairman of the Board of Governors with the approval of the competent authority i.e. Chief Minister Sindh, vide notification dated 27.04.2009, but the Board of Governors was dissolved by the Incharge Education Secretary vide impugned notification dated 21.05.2011, without approval of the competent authority and as such the operation of said notification was suspended by this Court vide order dated 02.06.2011, till next date, however, Government of Sindh was not specifically restrained to issue any further notification according to the Rules and Bye-laws of Public School Hyderabad and even there was no embargo upon the Government of Sindh from rectifying its defects, flaws and faults committed in issuance of earlier notification dated 21.05.2011, therefore, Education Secretary, Government of Sindh after obtaining approval of competent authority i.e. Chief Minister Sindh issued a proper, accurate and appropriate notification dated 03.08.2011. Amazingly, petitioner Abdul Hameed again challenged subsequent notification dated 03.08.2011, claiming it to be issued without legal authority having no legal effect, but during the course of arguments, the counsel for petitioner has failed to point out that who is the competent authority other than Chief Minster Sindh for issuance of such notification.

21. It is pertinent to mention that as per Constitution of the Public School, the Board of Governors shall be nominated by the Government for the tenure to be fixed by the Government, and the Board with the Commissioner Hyderabad Division as its Chairman shall consist of maximum of eleven members including the Chairman.

22. As per Constitution, Rules, Bye-laws, 1979, the Commissioner Hyderabad has 'been assigned the office of Chairman and said Rules/Bye-laws have not been amended, therefore, after restoration of the office of the Commissioner Hyderabad by the Provincial Government of Sindh, now in present scenario neither any other person can hold the chair of Chairman of Board of Governors nor can be appointed as Chairman except the Commissioner Hyderabad.

23. The relevant clauses of Constitution, Rules and Bye-laws of Public School Hyderabad (Business Rules, 1979), are reproduced as under:-- "Constitution of the Board:- The Board of Governors shall be nominated by the Government for a tenure fixed by the Government. The Board with the Commission, Hyderabad Division, as its Chairman shall consist of maximum of Eleven Member including the Chairman. The ratio of Official and non-Official members shall be such as fixed by the Government. (a) Official member shall hold office by designation and shall continue as such, but he shall automatically cease to be a member on his transfer and his successor shall hold the office as a future member. (b) Nominated members shall hold office for a term not exceeding two years and they shall be nominated by Commissioner, Hyderabad Division, and on expiry of their term the vacancies so caused shall be filled in by fresh nomination or re-nomination. POWERS AND DUTIES OF THE CHAIRMAN:-- a) He shall be supreme Head of the Board and without contravening the powers of the Board, shall guide, supervise and generally control the affairs of the School. b) He shall nominate the members, who shall hold office for term not exceeding two years on expiry of which the vacancy so caused shall be filled in by fresh nomination or re-nomination."

24. Perusal of relevant clause referred supra reflects that it is prerogative of the Government to nominate the Board of Governors and the tenure of the Board is also choice of the Government. It has further transpired that the Commissioner Hyderabad shall be the Chairman of the Board of Governors. Considering the present scenario, it is also worthwhile to mention that on the implementation of devolution plan, the office of Commissioner ceased to exist whereby the Executive Magistracy was abolished, therefore, during said period the appointment of any person as a Chairman by the Government was justified, but after revival of the office of Commissioner when constitution of the Board has not been amended by the Government, therefore, it is clarified that no other person can be appointed as Chairman of the Board except the Commissioner Hyderabad, and any such appointment by the Government shall be utter violation of the Constitution and Bye-laws of the Public High School Hyderabad. It is also an admitted fact that it is exclusive authority of the Government to appoint any person as Chairman of the Board of Governors and also revoke its appointment, therefore, the plea raised by the counsel for petitioner regarding non- issuance of show-cause notice prior to the removal of petitioner Professor Abdul Hameed from the office of Chairman have no legal force and same cannot be considered, as Public School Hyderabad is not a Statutory/ Corporate Body as such petitioner has no such vested.

25. During the course of arguments, parties have alleged the allegations regarding encroachment and misappropriation of the land of the School by certain elements, therefore, by the consent of all the parties to consider the ground realities regarding the alleged encroachment of the land of Public School, the Additional Registrar, High Court of Sindh, Circuit Court Hyderabad, was appointed as Commissioner, who inspected the land in presence of the parties and their advocates and submitted his report supported with photographs.

26. The report of the Commissioner is reproduced as under:-- "COMMISSIONER'S REPORT In compliance with common order dated 18.02.2014 passed by the Hon'ble Court in the present matters appointed the undersigned as Commissioner to inspect the entire land of the Public School, Latifabad, Hyderabad, and submit his report with regard to the alleged illegal encroachment and construction, if any, and the stage and extent thereof with further direction that in case any person is found to be in possession of any portion of the said land, his name and all the relevant particulars be obtained, including copies of the documents on the basis of which he is in possession, it is respectfully submitted as under:-- (ii) That notices fixing the inspection on 20.02.2014 (Thursday at 03:30 p.m. were issued to Mr. Jhamat Jethanand, Advocate for petitioners in C.Ps. Nos.D-884, 923 and 1349 of 2011; Petitioners Riaz Ahmed and 8 others in C.P. No.D-2324 of 2013; Mr. Allah Bachayo Soomro, Additional Advocate General, Sindh, Hyderabad; Syed Muhammad Saulat Rizvi, Advocate for respondent No. 2 in C. P. No.D-923 of 2011; Mr. Aghis-us-Salam, Advocate for Hafiz Arshad Inder, Principal Hyderabad Public School; Ex-Principal Abbas Raza Abbasi, Respondent No.2 in C.Ps. Nos.D-884 and 923 of 2011; Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad, and through a separate letter Mukhtiarkar City, Hyderabad requiring their presence at the site. Learned Counsel for the petitioner was further required to arrange a photographer and also to accompany the undersigned Commissioner to the site for inspection. Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad through the said notice was also required to be present at the side along with the original relevant record including the layout plan of school in question and also the staff for measurement etc. The Mukhtiarkar Taluka City Hyderabad was also required to be present at the side along with the necessary staff for measurement of the illegal encroachment and construction, if any, and stage of extent thereof as well as land in question with specific and accurate dimension thereof. iii) That at the request of Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad on the ground of his non-availability in Hyderabad on 20.02.2014 due to hearing before NAB Court, Karachi, the inspection was postponed to Friday the 21st February, 2014. iv) That Mr. Sundar Das Advocate for the petitioner in C.Ps. Nos.D-884, 923 and 1349 of 2011 along with Mr. Abdul Wahid Khan, Petitioner in C.P.No.D-884 of 2011 led the undersigned to the site viz. Public School, Latifabad, Hyderabad from its main gate in the northern boundary wall where the following persons were found present:- (I) Mr. Hassan Ali Zardari, Mukhtiarkar (Rev.)Taluka City Hyderabad. (II) Mr. Khadim Hussain Kutrio, Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad. (III) Mr. Hafiz Arshad Inder, Principal Public School, Latifabad, Hyderabad. (IV) Mr. Riaz Ahmed, Petitioner No.1 in C.P.No.D-2324/2013 along with other petitioners namely Mr. Muhammad Noman, Mr. Qazi Laiquddin, Mr. Abdul Hafeez, Mr. Khan Muhammad Asif. v) That entire land of the site was inspected along with Mukhtiarkar, Taluka Latifabad and Mukhtiarkar, City Hyderabad besides the parties present. As per Entry No.10 dated 10.4.2008 of the revenue record i.e. VF-VII produced by the Mukhtiarkar (Revenue) Latifabad, Hyderabad, the area of the land is Eighty Nine (89) acres which comprises of Survey Nos.350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 375, 376 and

377. Photocopies of the said Deh Form-VII containing the above entry duly signed and stamped by the Mukhtarkar (Rev.) Taluka Latifabad is attached herewith and marked as Annexure-A (original seen and returned). vi) That this land of the school is within its boundary. vii) That on the question of the Commissioner with regard to the alleged illegal encroachment and construction to the parties present at the site, Hafiz Arshad Inder, Principal, Public School pointed out the portion of the land inside the boundary wall adjacent to the western wall near South-West corner. Over this land, Six (6) rooms and 12 stables were found constructed up to ground floor with concrete roof. The covered area was measured by the officials of the Mukhtiarkar (Rev.) Taluka Latifabad and the measurement of the area was found to be 5301 Sq. Ft. The person present occupying the said construction showing his Police Service Card introduced himself as Inspector Syed Saijad Hussain Shah Range/Buckle No.H/517 Sindh Police, holding CNIC No.41303-1533772-3. With regard to the documents on the basis of which he is in possession of the said constructed portion, he could not produce any document. He, however, stated that these rooms are being used as Police Horse Riding Club since 1982 under the agreement of Mr. Roshan Zameer, the then Deputy Commissioner, Hyderabad and Mr. Saleem Wahidi, the then Senior Superintendent of Police, Hyderabad with the Commissioner, Hyderabad and the then Principal Public School namely, Mr. Abdul Hameed Memon. Photographs of the rooms and stables were taken, which are attached herewith and marked as Annexure-B, C and D for kind perusal. A site sketch of the said constructed portion showing its measurement as 5301 Sq. Ft. was also got prepared through the Mukhtiarkar (Rev.), Taluka Latifabad, Hyderabad which is also attached herewith and marked as Annexure-E.(Emphasis Added) viii) That thereafter the Principal and other parties present led the Commissioner noticed the marriage lawn adjacent to the Western wall inside the school boundary near its South West corner. This marriage lawn with boundary walls without roof was found constructed over an area of 16000 Sq. Ft. the name of "Public Garden Lawn" which has further two portions as "Lawn-A" and Lawn-B". The person present in the office of the said lawn introduced himself as Rizwan Arain S/o Abdul Hameed Arain, Manager of the Lawn. With regard to his identification, he neither produced his CNIC nor any other proof. On the question of providing copies of documents on the basis of which he is in possession of said lawn, he could not produce any document. Photograph of the main entrance opening at the road on its western side also showing its name, photograph showing internal arrangements made for functions as well as photograph showing its boundary walls, taken at the spot, are attached herewith for kind perusal as Annexure-F, G and H respectively. A side sketch of the said constructed portion showing its measurement as 16000 Sq. Ft. was also got prepared by the Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad which is also attached herewith and marked as annexure-I for kind perusal. (Emphasis Added) ix) On the question of the undersigned Commissioner with regard to any other encroachment, if any, Mr. Abdul Wahid Khan petitioner in C.P. No.D-884 of 2011 led the Commissioner to a land of about fifteen (15) acres in the South-West corner. No encroachment was noticed on the said land. However, some grown up crops of wheat, vegetables of fodders were found. No person was found present at the said land, the photograph of which was taken which is attached here-with as Annexure-J. At this point, Hafiz Arshad Inder, Principal, Public School, Latifabad, Hyder-abad (Respondent No.4 in C.P. No.D-2324 of 2013) stated that the land was given under an agreement (MAKATA) to one Mr.Mohsin Raza Rizvi for three (3) years at the rate of Rs.7500/- per acre per annum by the Public School Administration. He also produced the photocopy of the said agreement dated 18.07.2012 a/w photocopies of CNIC of Syed Mohsin Raza and Bank Receipts/ Challan No.2777 dated 18.07.2012 and Challan No.2511 dated 02.07.2013 regard-ing deposit of rent of Agricultural land in School Account, which are attached herewith and respectfully marked as Annexure-K/1, K/2, K/3 and K/4. x) That no other encroachment was noticed by the Commissioner inside the boundary over its land. xi) That Mr. Khadim Hussain Kutrio, Mukhtiarkar (Rev.) Taluka Latifabad, Hyderabad showing apprehension on the inclusion of said Police Horse Riding Club constructed near the western boundary was in the said 89 acres of land of Public School Hyderabad sought 3/4 days time for preparation submission of detailed layout plan with the help of officials of survey department of the land in question with specific and accurate dimension when he is informed that the matter is fixed in Court on 24.02.2014 at 12:00 noon. (Emphasis Added) xii) The report is respectfully submitted, accordingly. Hyderabad Dated 21.02.2014 ADDITIONAL REGISTRAR/ COMMISSIONER"

27. From perusal of the Commissioner's report it has reflected that the land of the school has been encroached upon by various elements and one Inspector Syed Sajjad Hussain Shah of Police Department holding Buckle No.H/517 Sindh Police, has encroached upon the land admeasuring of 5301 square feet whereupon the construction has been raised by him but he was not holding any title document in his favour. About 89 acre of land of school was handed over in the year 1982 by Mr. Roshan Zameer, the then Deputy Commissioner, Hyderabad to Mr. Saleem Wahidi, the then Senior Superintendent of Police, Hyderabad under an agreement whereupon Police Horse Riding Club has been established. One Rizwan Arain has constructed Marriage Lawns over an area of 16000 square feet under the name and style of Public Garden Lawn with two further portions as Lawn 'A' and Lawn 'W. Said Rizwan Arain has also failed to produce any title document in his favour before the Commissioner.

28. In this context we would refer the case of Muhammad Sabir v. Major (Retd) Muhammad Khalid Naeem Cheema and others, 2010 CLC 1879, wherein it was held that it is well settled law that the land for use of amenity plot cannot be converted into any commercial or residential use. In case of Ardeshir Cowasjee and 10 others v. KBCA and 4 others, 1999 SCMR 2883, the Hon'ble Supreme Court has held that conversion of amenity plot in a park into a commercial high rise building. Approval of the building plan in respect of plot being in violation of Articles 40 and 52-A, KDA Order, 1957 and petitioners were entitled to a declaration in terms of Article 199 of the Constitution that the approval of the building plan in the park without lawful authority and of no legal effect. Petitioners were also entitled to seek removal of the unauthorized structure form the said plot as the plot could not be used for any other purpose than for which it was carved out pursuant to the scheme of Development Authority.

29. It is worthwhile to mention that the land of the school being an amenity plot cannot be allotted, converted or sold out by the Officers of the Revenue Department and amenity plot cannot be utilized for any other purpose, therefore, the above referred encroachments and permission of Deputy Commissioner to District Police Hyderabad for establishment of Police Horse Riding Club through an agreement cannot be treated as lawful possession. Consequently, the Secretary Education Department and the Senior Member of the Board of Revenue, Government of Sindh are directed to adopt all the legal measures to get released the above referred entire land within two months from the respective illegal occupants and hand over its physical possession to the Public School Hyderabad in accordance with law. Inspector General of Sindh Police is directed to make alternate arrangements for the shifting of Police Horse Riding Club within two months and Chief Secretary, Government of Sindh is directed to look into the matter personally.

30. In C.P No. 884 of 2011, it is worthwhile to mention that respondent No.2, Abbas Raza Abbasi was appointed as principal of the Public School and has attained the age of superannuation on 31.12.2008, but his services were extend for further five years w.e.f. 1st January, 2009 as principal of the school by the Board of Governors in its 124th meeting held on 4.11.2008 and as such he continued as principal till the date he was relieved by the Chairman without approval of the Board of Governors, therefore, the claim of the petitioner Abdul Wahid as well as the then Chairman Abdul Hameed that said Abbas Raza Abbasi after attaining the age of superannuation, was illegally continuing as principal is contrary and divergent from the correct facts. On the contrary Professor Abdul Hameed himself being Chairman has violated the Rules and Bye-laws of the school and without approval of the Board of Governors, had relieved said Abbas Raza Abbasi vide notification dated 25.04.2011, though he was holding office of the principal after the date of superannuation with the approval of the Board, but the Chairman despite such knowledge did not take any action soon after taking over the charge as Chairman in this regard which also flashes his mala fide intention, and even otherwise being the Chairman he had no authority to recall and revoke the approval of extension of Abbas Raza Abbasi as principal which was accorded to him by the Board of Governors as such the relieving order of Abbas Raza Abbasi and order of appointment of Abdul Wahid Khan as principal of the school could not be termed in accordance with the Rules and Bye-laws of School having no legal effect.

31. As per Minutes of 128th meeting, the Board of Governors of Public School Hyderabad held on 20.08.2011, and petitioner Abdul Wahid Khan also participated in meeting as Secretary/ Member and signed its minutes. The relevant portion of Resolution No.2 (b) is reproduced as under:-- "It was resolved that at the post of Principal needs to be filled in with a suitable gentleman on deputation having a good experience of teaching and administration. The names of M/s Noor Muhammad Talpur (BPS-20) of Education Department, Commodore Muhammad Aslam of Pakistan Navy and Professor Abdul Salam Khoja, retired educationist of BPS-20 were proposed by the Board of Governors and it was finally decided that Commodore Muhammad Aslam of Pakistan Navy who has served as Principal Cadet College Petaro may be appointed as Principal. The Chairman, Board of Governors was authorized by the members to take further action in this regard."

32. In pursuance of the resolution of the Board of Governors in its 128th meeting, Commodore Muhammad Aslam of Pakistan Navy respondent No. 8 was appointed Principal by the Government' of Sindh, Education and Literacy Department vide order dated 27.08.2011.

33. After taking over the charge by the new Principal Commodore Muhammad Aslam of Pakistan Navy, the petitioner Abdul Wahid Khan issued a letter dated 29.08.2011, to the Banks and National Saving Centre, Hyderabad which is reproduced as under:-- "OFFICE OF THE PRINCIPAL PUBLIC SCHOOL HYDERABAD SINDH No.PSH/(Estt)-2011/ Dated: 29.08.2022

1. The Manager, Allied Bank of Pakistan Ltd. Public School Branch, Unit No.3, Latifabad Hyderabad.

2. The Manager, National Bank of Pakistan, D-Block Secretariat, Islamabad.

3. The Incharge, National Savings Centre, Hussainabad Hyderabad. In pursuance of the resolution of the Board of Governors Public School Hyderabad in its 128th meeting held on 20th August 2011, and his appointment letter by the Chairman Board of Governors Commodore Muhammad Aslam of Pakistan Navy, has joined as Principal Public School Hyderabad today on 29th August 2011 (F.N). Henceforth he will operate all the Accounts of the Public School Hyderabad. His specimen signatures duly attested are given as under:-- (Abdul Wahid Khan) Principal Public School Hyderabad Specimen Signature of Commodore Muhammad Aslam Principal Designate, Public School, Hyderabad. Sd/- Sd/- Sd/- Signature Signature Signature Attested Abdul Wahid Khan Principal Public School Hyderabad."

34. From the discussion made supra, it has come on record that petitioner Abdul Wahid Khan himself attended 128th meeting of the Board of Governors of Public School Hyderabad as Secretary/ Member and signed minutes of the meeting. Furthermore, Abdul Wahid Khan had also informed the banks concerned regarding appointment of Commodore Muhammad Aslam of Pakistan Navy as Principal of the school and also introduced his specimen signatures to operate accounts of the Public School. These facts prima facie established that Abdul Wahid Khan had waived his right as such he could not come forward to challenge the appointment of Commodore Muhammad Aslam as Principal which is hit under the principle of waiver.

35. Reverting to the controversy, it is also important to mention that petitioner Abdul Hameed was appointed as Chairman vide notification dated 27.04.2009, and the Board of Governors was also reconstituted including non-official members. Admittedly, the tenure of non-official members as per Constitution of the school is only for two years. Thereafter Incharge Education Secretary issued notification dated 21.05.2011, whereby the Chairman and the Board of Governors were dissolved and Principal Public School Hyderabad was allowed to look after the routine affairs of the school, and this Court vide order 02.06.2011, suspended the operation of impugned notification dated 21.05.2011 till the next date. Admittedly, the tenure of non-official members has already expired, therefore, under the umbrella of order dated 02.06.2011, passed by this Court, the petitioner was continuing as Chairman, but in the absence of non-official members of the Board of Governors all the affairs of the Public School came to a halt. Considering the sensitivity of the issues, lack of proper administration and to streamline the affairs of Public School Hyderabad, the Education Secretary, Government of Sindh with the approval of the competent authority i.e. Chief Minister Sindh, after rectifying legal defects in earlier notification dated 21.05.2011, issued another notification dated 3.08.2011, whereby a new Chairman and the Board of Governors were appointed and petitioner Professor Abdul Hameed was relieved.

36. There is no cavil to conclude that any verbal order of the public functionary has no legal sanctity and Hon'ble August Court has declared such verbal orders as illegal in its various judgments. Admittedly, petitioner Abdul Wahid Khan was appointed as principal by the then Chairman Professor Abdul Hameed vide notification dated 25.04.2011, without the approval of the Board of Governors as such said notification of appointment was issued without any legal authority and he cannot cover such illegality by alleging that respondent Abbas Raza Abbasi had removed him from his office of principal on the verbal directions of the Education Minister. Therefore, the notification issued by the petitioner Professor Abdul Hameed cannot be termed as legal one. It is well settled proposition of the law that "he who seeks equity, he must do equity". As per our wisdom and application of judicial mind, we have no hesitation to conclude that this Court while suspending the operation of impugned notification dated 21.05.2011, till next date vide order 02.06.2011, in C.P No.923 of 2011, has not minimized, restricted or constrained the legal authority of the Government of Sindh to supervise, maintain and streamline the affairs of the Public School Hyderabad within the parameters of the Constitution, Rules and Bye-laws, 1979 of the Public School, which are going worse day by day, therefore, by issuing subsequent notification dated 03.08.2011 with approval of the competent authority, the respondent Education Secretary has not violated, deviated and dishonored the order passed by this Court on 02.06.2011.

37. We have also dilated upon the factum of the age of the petitioner Professor Abdul Hameed and as per his bio-data filed along with his petitions as annexure-A, his date of birth is 12th October, 1939, so now in the year 2015, his age would be about 76 years. Likewise petitioner Abdul Wahid Khan has also attained the age of superannuation. Therefore, further employments of Abdul Hameed as Chairman of the Board of Governors and Abdul Wahid Khan as principal of Public School Hyderabad respectively, would be utter violation of the verdict of the Hon'ble Supreme Court passed in Suo Motu Human Rights cases, 2011 SCMR 582, whereby the August Court has held that the employment after retirement was not allowed to be continued in terms of S.14 of the Civil Servant Act, 1973. In this context, we would refer the case of Province of the Punjab, through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, PLD 1997 SC 351, wherein Hon'ble Supreme Court has held that High Court in exercise of its discretionary jurisdiction is not bound to interfere in all circumstances. Exercise of discretion by High Court would be proper if the Court had not interfered with the order of the Authority, even if it felt that said order whereby the Authority rendered the order of its subordinate Authority as null and void, was not strictly legal. Situations and circumstances where High Court may not interfere in exercise of its discretionary jurisdiction stated. It has further held that object of a superior Court while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view, it may in equity, set aside or annual a void judgment or enjoin enforcement by refusing to intervene in the circumstances of the case before it. It has further held that Courts will refuse to intervene where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or adding the injustice. It has further held that void order is not always to be struck down regardless of the consequences. Void order is to be struck down provided there is no statute or principle of law which would make it unjust or inequitable. It has further held that one cannot be found guilty of disobedience of an order which is nullity in the eyes of law. If the order of the Court is contrary to the judgment of the Supreme Court, such, order cannot be got implemented by invoking powers of contempt of the Court.

38. In the light of the dictum referred supra, Professor Abdul Hameed who is about 75 years old cannot be restored as the Chairman of the Board of Governors of Public School Hyderabad. Likewise petitioner Abdul Wahid Khan has no cause of action to invoke the Constitutional jurisdiction of this Court as envisaged under Article 199 of Constitution. Moreover, the continuous clashes and use of illegal means by the petitioners and private respondent for the office of Chairman of the Board of Governors and chair of Principal of the School have gone to the extreme of lodging of FIR and their lust of power has seriously affected the peaceful atmosphere of Institution and also tarnished the entire norms of education which has also created sense of uncertainty in the minds of students. It can easily be observed through the print media on record that the educational peaceful atmosphere has collapsed. The news of continuous strikes, rifts amongst the administration and teaching staff and their clashes are making their way as the cover stories of the newspapers. Considering the present worse scenario of the Public School Hyderabad, and to ensure the peaceful, nonviolent and congenial atmosphere, the Commissioner Hyderabad is hereby appointed as the Administrator to take over the entire administration of the School with immediate effect to ensure restoration of peaceful educational system/environment and to maintain all the affairs of the Public School in transparent, translucent and radiant manner. Government of Sindh is directed to reconstitute the Board of Governors of Public School Hyderabad according to the Rules and Bye-laws, 1979 within two months without fail.

39. Consequently, C.P. No.D-2324/ 2013 is allowed in the terms referred supra, and simultaneously, C.Ps. Nos.D-1349/ 2011, D- 884/2011 and D-923/2011 are hereby dismissed being devoid of any legal merits along with all pending applications including CMA No. 6318 of 2011 for contempt of Court.

40. The Commissioner Hyderabad is directed to appoint Principal of Public School instantly through Board of Governor. Government of Sindh is directed to get released the illegally occupied lands of Public School, Hyderabad within two months. Copy of the judgment be transmitted to Commissioner Hyderabad, Secretary Education, Chief Minister Sindh and the learned A.A.-G. Sindh for timely compliance and compliance report be furnished to this Court through Additional Registrar of this Court within two months. MH/A-26/Sindh Order accordingly.