2002 PLP (C (PLC(CS))

PLD 1983 Lah. 246; 1996 SCMR 1185: 2001 PLC (C.S.) 1037 and Zahid Akhtar's case PLD 1995 SC 530 ref. Pervaiz Inayat Malik for Petitioner. Date of hearing: 9th April, 2002. Through this Constitutional petition the petitioner seeks setting aside of order dated 20‑2‑2002 by which the services of the petitioner have been terminated.

2. The brief facts of the case are that the petitioner had passed P.T.C. examination in 1992. Some posts of the P.T.C. Teachers were advertised by respondent No.2 on 9‑4‑1994. Certain candidates were selected. As the selection was not made on merit basis, different candidates, who could not succeed, filed writ petitions in this Court and this Court vide judgment dated 27‑6‑1996 passed in Writ Petition No. 15470 of 1995 directed the District Education Officer, Narowal, to scrutinize the appointment, and select the persons on merits. As a result of this order the petitioner was appointed as Drawing Mistress through the order dated 13‑2‑1997. The petitioner joined the service as Drawing Mistress and continue the same while some Audit objection has been raised vide order dated 4‑12‑2001 and it has been clearly mentioned that untrained teachers who were retained in service beyond three years without training in the specified period are liable to be terminated from service. On the basis of this letter DPI issued a direction on 7‑1‑2002 and D.E.O. has finally passed the impugned order by which the petitioner who is also not a trained teacher to the extent of her posting as Drawing Mistress has been terminated from service.

3. Learned counsel for the petitioner contends that Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is not a bar in case of the petitioner as the order for the termination of the petitioner has not been passed by a competent Authority and has been passed on the basis of report of Auditor‑General which is not the departmental authority of the petitioner hence no appeal lies against the said order and respondent No.2 without applying its mind has passed the impugned order thus this order can be challenged in the writ petition and cannot be challenged before the Service Tribunal as such the only remedy available to the petitioner is the filing of this writ petition. It is further contended that similar situation had arisen in the case reported as "PLD 1983 Lah, 246" which is a D.B. judgment where on the basis of Auditor‑General's Report some orders were passed and same were set aside by this Court. It is further contended that the order which has been passed by the D.E.O. was not required to be passed under the law and the D.E.O. has not applied its mind before passing the said order. It is further contended that even in‑the order passed by the D.E.O. except' the Court cases the orders were to be passed and the petitioner's case also falls within the category of Court cases and no termination order could have been passed against her. It is further contended that no doubt the principle of locus poenitentiae is available for the rectification of any mistake but the order cannot be passed without issuance of show‑cause notice and in such circumstances the order impugned is against the principle of natural justice and is liable to be set aside by this Court while exercising powers under Article 199 of the Constitution of the Islamic Republic of Pakistan. It is further contended that the Punjab Service Tribunal has already held in similar situation that the order passed on the direction of the audit report is liable to be set aside, and respondent No.2 was bound to implement that order because the petitioner is similarly placed to that .of the case of Arshad Mahmood who filed the appeal before the Punjab Service Tribunal and the Supreme Court of Pakistan has held that every civil servant is not required to approach the Court for the redressal of his grievance and if an order has been passed regarding any civil servant that will be applicable to the case of other civil servants similarly placed as well. Also relies on "1996 SCMR Page 1185" and "2001 PLC (CS) Page 1037". In such circumstances the petitioner claims that the writ petition is maintainable and is liable to be accepted by this Court.

4. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. The petitioner is aggrieved by the impugned order passed by the District Education Officer, Narowal who is her authority and the petitioner definitely has remedy by filing an appeal/representation before the higher forum and can approach the Punjab Service Tribunal under section 4 of the Punjab Service Tribunals Act, 1974. The case‑law cited by the learned counsel for the petitioner is not applicable as subsequently the august Supreme Court of Pakistan in numerous cases has given consistent view, that the orders passed even without jurisdiction, without lawful authority, coram non judice, with mala fide intention and on the intervention of political personalities can only be challenged before the Punjab Service Tribunal. One of the case is of Zahid Akhtar reported in "PLD 1995 SC 530". In such circumstances the petitioner can approach the Service Tribunal and this Court cannot entertain the writ petition due to the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. I avoid to comment upon the merits of the case lest it may not prejudice the case of any of parties.

5. This petition is dismissed being not maintainable. H.B.T./T‑93/L Petition dismissed.