2005 PLP (C (PLC(CS))

The petitioners have filed this Constitutional petition with the following prayer:‑‑ "It is humbly prayed that adjustment/postings of respondents Nos.4 to 9 as Headmasters and Headmistresses in the District Sheikhupura and other Districts as such in violation of existing rules may kindly be declared illegal and without lawful authority and the same be set aside."

2. The learned counsel of the petitioners submits that no subject specialist can be appointed or posted as Headmaster and Headmistress without experience of 10-years, whereas respondents Nos.4 to 8 have no requisite qualification to be appointed as Headmaster and Headmistress. He further submits that the Education Department, Punjab Lahore, promoted respondents Nos.4 to 8 as subject specialist in B.S. 17 and their services have been placed at the disposal of District Co‑ordination Officer, Sheikhupura for further posting in District Sheikhupura. Respondent No.3 vide letter, dated 24‑9‑2003 has sent proposal of respondents Nos.4 to 6 and 8 for adjustment as subject specialist to the District Co‑Ordination Officer, Sheikhupura. Respondent No.2 has appointed the aforesaid respondents as Headmasters and Headmistresses in violation of Rules and Regulations of the respondents and this fact was pointed out by the Executive District Officer, Education, Sheikhupura vide letter, dated 30‑10‑2003 to respondent No.2. Respondent No.2 while responding to the letter of respondent No.3, dated 30‑10‑2003, modified the postings of aforesaid respondents as stop‑gap arrangements as is evident from Annexure‑B. The petitioners being aggrieved submitted various applications to the District Nazim concerned, who also did not take any action on their applications. He further submits that this fact was not denied by the respondents in the report and parawise comments.

3. The learned law officer submits that postings/adjustment of private respondents were made by respondent No.2 just stop‑gap arrangements and were placed as and when regular officers are available. There are so many vacancies vacant qua postings of Headmasters and Headmistresses in the District Sheikhupura and no eligible person is available under the control of the respondents to be appointed against the said posts, therefore, the impugned adjustment order was passed by respondent No.2 in the best interest of public and Government and in fact he has passed the order to avoid the hardship of administration. He further submits that the Constitutional petition is not maintainable in view of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act.

4. The learned counsel of private respondents submit that the petitioners are not qualified to be posted for the post in‑question. They further submit that 31 posts are vacant with the respondents. The petitioners have no locus standi to challenge the adjustment order through this Constitutional petition.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. The question of law has been decided qua such type of action by the Honourable Supreme Court in "Human Right's case". No. 104 of 1992 (1996 SCMR 1349). The relevant observation is as under:‑‑ "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that, the Federal Government, Provincial Government, Statutory Bodies and the Public Authorities have been making initial recruitments, both A ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject, to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement. The aforesaid proposition of law is also supported by the following judgments:‑‑ "Munawar Khan's case" (1993 SCMR 1287), "Channabasa Bhi's case " (AIR 1965 SC 1293) and "Abdur Rashid's case" (1995 SCMR 999). The similar controversy was also considered in "Aziz Ahmad's case (1997 PLC (CS) 356). The relevant observation is as under:‑‑ "The constitution of a country is a kind of "social contract" I which binds a people, society and a State. The terms of the contract foster feelings of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion or nationhood and stability of the system. Feelings of patriotism do not sprout out of a big arsenal. These are not borne in the battle fields where warring camps shed colossal human blood in the name of narrow nationalism, not in the "Chambers of Politics" where high sounding clich s are spun out to inflate one's ego and innuendos are hurled to humble the opponents. These are borne in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio‑political system where merit reigns Supreme. If we want a system to be stable and if we want the people to defend the system we will have to create conditions where they feel that the system protects their fundamental rights, which were recognized in the social contract. A people fight for something which is worth fighting for, worth living for and worth dying for contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract".

7. It is pertinent to mention here that the concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life and sermon delivered on the occasion of last Hajj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was made clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The scheme of our Constitution has set‑up the role of each and every organ. The superior Courts of Pakistan have also laid principle that each and every organ has to function independently, freely without interference by any other organ of the State. The above mentioned principle coupled with Articles 4,5(2), 2‑A, 37 and 38 of the Constitution of Pakistan lead us to irresistible conclusion that each anti every organ should have to remain within its own sphere. The superior Courts consistently observed/considered and set aside the actions which are not within the domain of the Authority or usurping the functions of other organs. In case, adjustment order and letter of respondent No.3 be put in juxta‑position then it is crystal clear that respondent No.2 has passed the order which is not inconsonance with law and Constitution as per law laid down by the Honourable Supreme Court in "Zahid Akhtar's case" (1995 SCMR 530). Meaning thereby respondent No.2 has passed the order under influence/direction of private respondents, which action is not sustainable in the eye of law, as per principle laid down by the Superior Courts in the following judgments:

"Ghulam Mohy‑ud‑Din's case" (PLD 1964 SC 829), "Syed Fayyaz Hussain Qadri's case" (PLD 1972 Lahore 316), "Aman ullah Khan's case " (PLD 1990 SC 1692) and "Sacm Labour Union's case (1946) 2 All ER 201).

8. It is also settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State and the judgment of this Court is also binding on each and every organ of the State by virtue of Article 201 of the Constitution respectively. The above mentioned series of judgments reveal that the Honourable Supreme Court has on each occasion, declared the actions of the Authorities which are passed in violation of the law, Constitution and amounts to usurpation of authority of other functionaries. Non observance by the functionaries of the dictum laid down by the Supreme Court of Pakistan is violation of Article 189 of the Constitution. If all the prevailing circumstances i.e. judgments of the Supreme Court, action of the authorities and attitude of the respondents put in juxta position then it becomes crystal clear that the Legislature and executive have refused to give due respect to the dictum of Supreme Court of Pakistan; which is not congenial and conductive for the existence of the country, to run the State smoothly, mutual cooperation, respect and understanding. This situation will create chaos. So, in a word, it can be safely concluded that each organ must work within its limits prescribed by the Constitution and law. In spite of the bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act, this Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others" (PLD 1981 SC 612) and "Province of Sindh through Chief Secretary Sindh, Karachi and 4 others Gul Muhammad Hajano" (2003 SCMR 325).

9. In this view of the matter and keeping in view the administration problems of the respondents, let a copy of writ petition be sent to the Secretary Education concerned, who is directed to 'look into the matter personally and pass an appropriate order' strictly in accordance with law preferably within 2 months from today, either himself or send the same to competent authority for its decision, who is also directed to pass an appropriate order strictly in accordance with law within 2‑months from today. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.

10. The aforesaid learned law officer is directed to notify the order of this Court to the Secretary Education concerned for necessary action and compliance. Office is also directed to provide one copy of this order to the aforesaid learned Addl: Advocate‑General for onward transmission to the concerned Secretary, Education for necessary action and compliance. With these observations the writ petition is disposed of. M.A.W./J‑26/L Order accordingly.