2017 PLP (C (PLC(CS))

SALAHUDDIN PANHWAR, J..-- All these petitions were disposed of by short order dated 09.10.2015 in following terms:- (1) The Secretary Education and Literacy Department shall constitute a Committee comprising under chair of Mr. Asif Haider Shah, Commissioner, Hyderabad with its members namely Mr. Allah Bachayo Khaskheli, Director Education Hyderabad and Mr.Jai Ram Dass, Education Officer (Retired) to examine the appointments of the candidates who were appointed in pursuance of advertisement dated 13.4.2012; (2) The Committee shall also examine the fate of corrigendum issued by the department and examine whether appointments were made under relevant rules and in accordance with law; (3) Inquiry shall be conducted at Larkana, needles to add here, after providing opportunity to all concerned persons and it shall be completed within two months; (4) The Committee shall fix the liability against delinquent persons, if any illegality or irregularity is found in the above appointment process; (5) The Secretary Education shall ensure that appointments relating to teaching staff viz. O.T, L.T, G.T, P.T.I, W.T and other categories in education departments, except reserved quota, shall be conducted other initial examination through N.T.S. The policy (criterion) of such appointment regarding all these categories of teaching staff shall also be formed within three months; (6) The Secretary Education shall ensure process of appointments, relating to posts to be filled through Public Service Commission shall include initial test through NTC, the introduction thereof was/is to help in choosing the best as a recognized mode transparency;

2. Through all the above petition(s), the petitioners challenged the appointment(s) of Drawing/Oriental Teacher while claiming that respondent(s) got flashed advertisement for recruitments; petitioners, being qualified were called to appear in written test but the respondents did not publish the list of successful candidates rather issued offer orders/appointment letters to blue eyed while ignoring the merit and recruitment procedure even.

3. The respondent (Director Schools/ Education) denied the allegations and came forward with plea that it (recruitment) was a policy matter; written test was conducted fairly; result of only successful candidates was announced. The prima facie record was speaking otherwise which shall stand clear from a reference to order dated 20.05.2014 passed in the matter in hand which reads:- "It appears that there were thirty posts of Oriental Teaches/ Arabic Teachers and candidates were appointed by respondent No.3 on 25.4.2012, whereas, last date of the submission of the applications was 26.4.2012. In these circumstances, Director Schools Education Larkana, respondent No.3 is directed to submit list of thirty candidates who were appointed before last date of applications along with copies of their appointment orders. He shall also place before this Court copy of policy on the basis of which candidates were appointed and record of their appointments. Respondent No.3 shall be in attendance on the next date of hearing. Mr. Ghouri submits that he would join thirty persons/candidates who have been appointed as respondents. He would be at liberty to join them after filing of such list ." It is pertinent to mention that, defendants have not denied the date of appointment orders but claimed that corrigendum was issued and that irregularity is immaterial. Without commenting on this aspect now, it is left upto the Committee, constituted with consent of parties, to examine, the whole process of appointment and in case illegality is found, the committee shall fix the responsibility and recommend the matter to the concerned authority for legal action.

4. Though, the matter ended in result of consent of parties, but under these peculiar circumstances, it would be significant to examine the scope of test/recruitment process in future, the meaning of the word 'test', per Oxford dictionary means: 'OF KNOWLEDGE/ABILITY.

1. An examination of sb's (somebody's) knowledge or ability, consisting of questions for them to answer or activities for them to perform.' From plain reading of the term 'test' it should not be confusing any more that this process is meant to provide an equal opportunity to all (candidates) so as to know their knowledge or ability. The term shall not qualify its true meaning, and object if result thereof is not declared or failed are not allowed to know their deficiency because there can be no improvement if one does not know his knowledge/ability and lacking. Further, a candidate cannot challenge the result of a successful before an authority even unless he/she knows margin of his failure by putting his/her knowledge or ability on required touchstone. Needless to add that it may be the discretion of examiner to award numbers but such discretion cannot be and should not be at the cost of merit (quality) else the term 'test' shall loose its object and purpose. Thus, we are afraid in accepting the explanation that declaration of result of chosen only was/is sufficient to satisfy the conscious of all the others (failed) that they did not have required knowledge or ability.

5. The issue, involved in all these petitions, relates to the teaching field which holds our future (children); our generation has to meet the challenges of the world and a good contribution towards society which one cannot expect unless our future is held in good hands (teachers). Thus, we have no hesitation in saying that a complaint in recruitment of 'Teacher' cannot escape merely on the plea that it was policy matter. Allah says in the Qur'an in Sura 9, Verse 121: " .. let them devote themselves to studies in religion and admonish their comrades when they return to them so that they may guard themselves against evil." Worth to add here that 'Deen and Duyna' are not to be taken as parted therefore, the above commandment should leave nothing to doubt the importance of education/knowledge because it guards oneself against evil which (evil) does include all kind of evils whether it be social, economic, religious etc. It is the education and education alone which turns a crowd into society; makes one to understand not only his rights but his obligations towards others. This is so because of which the Holy Prophet of Allah has said, "Atta libul ilm faridhatol kuli muslim." This Hadith means: "Attainment of knowledge is a must for every Muslim."

6. In such back-ground and heavenly commandments, our Constitution includes Article 25-A which reads as:- 'Right to education.- The State shall provide free and compulsory education to all children of the age of five to sixteen years, in such manner, as may be determined by law.' The above is included in Part II of Constitution hence status thereof to be one of the fundamental rights needs no debate at all. Appointment of a 'Teacher' should not be taken as an 'appointment to a post' but it must always be kept in mind that it would be the person who can either make a child helpful for the society or his failure or negligence may turn an innocent into evil for society. The consequences of efforts or negligence however shall be borne by us all therefore, policy should always be made to have the best amongst the betters. The authorities may come forward with a policy for any specific purpose and object but if it fails the test of reasonableness, transparency and/or is otherwise unjust and unfair or suffers from mala fide, the Courts are not only vested with the jurisdiction to set aside such action but any failure in such an eventuality to exercise the power of Judicial Review, when invoked, would make the Court a party to such unreasonable, unfair, mala fide and illegal action. Reference can well be made to the case of Habibullah Energy Ltd. v. WAPDA (PLD 2014 SC 47) wherein it is held that: 'No doubt, while exercising its jurisdiction, the superior Courts neither sit in appeal over the administrative actions nor interfere on account of inconsequential deviations, as has been observed in Dr. Akhter Hussain Khan's case (supra). However, where the administrative authority acts in a discriminatory manner and action fails the test of reasonableness, transparency and /or is otherwise unjust and unfair or suffer front mala fide, the courts are not only vested with the jurisdiction to set aside such action but any failure in such an eventuality to exercise the power of Judicial Review, when invoked, would make the Court a party to such unreasonable, unfair, mala fide and illegal action' In the case of Watan Party and another v. Federation of Pakistan and others (PLD 2013 SC 167), it was held that:

8. From the bare reading of the Constitution, particularly, Articles 29 and 38 of Chapter 2, Part-II, relating to principles of policy, it is evident that policies are to be made by the respective Federal and Provincial Governments and all decisions, regarding their implementation are also to be taken by them on the basis of determined priorities of different projects and availability of financial resources at their disposal. Obviously, this exercise cannot be ordinarily interfered with by this Court by invoking its jurisdiction under Article 184(3) of the Constitution, unless shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of this Country, thereby affecting the interest of public at large. In another case of 'Muhammad Shariq v. Federation of Pakistan PLD 2015 Islamabad 180' it is held that:

13. Constitutional jurisdiction of this Court under Article 199 is not fettered by provisions of subordinate legislation and it can be brought into operation in aid of a citizen whose fundamental rights are put in jeopardy . The honourable Supreme Court in case of Abdul Basit (2012 SCMR 1229) supra held in unambiguous term that Article 199(3) of the constitution had to be strictly construed and where an action of the authority was in colourful exercise of power and/or was tainted with malice, Article 199(3) could not come in the way of the High Court to entertain such a petition. The jurisdiction of this Court to exercise jurisdiction of judicial review even in matter(s) of appointment was made clear by honourable Supreme Court in the case of Ghulam Rasool v. Government of Pakistan (PLD 2015 SC 6) while holding that: "Even otherwise, such powers are to be employed in a reasonable manner. Even otherwise, the policy adopted by the Federal Government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made thereunder i.e. in case of any illegality in the ordinary process of appointments, this Court as well as the High Courts have sufficient powers under Articles 184 and 199 of the Constitution to exercise judicial review."

7. Since, there can be no denial to the legally established fact that in the instant matter (issue), it was a case of apple against the apple because all the applicants (candidates) were required to possess requisite qualifications for their eligibility to appear in required 'written test' hence at all material times the Articles 25 and 27 of the Constitution were fully applicable and authorities were left with no discretion to make any selection except on 'merits' which however has been alleged to have been ignored.

8. So far discussion allows us to question the policy, so framed for recruitment of O.T, L.T, G.T, P.T.I, W.T and other categories in education departments. Prima facie, it appears that though the same authority (department) does recognize the importance of participation of third party (NTS/IBA) in recruitment of Teachers, falling in categories of 'Science Teacher or General Teacher' but same authority (department) does not resort to the same course while making recruitment of O.T, LT, G.T, P.T.I, W.T and other categories in education departments. This seems to mean that the authority (department) does not consider these two categories as 'teachers'. Worth to add here that even during the course of hearing, an attempt was also made with reference to such by saying that teaching staff O.T., L.T., G.T., P.T.I, W.T. and other categories in education departments are not in stricto senso 'Teachers' but could not deny to the fact that these teaching staff: (i) shall require to provide education (knowledge) to children may be for a particular language, skill or subject; (ii) shall take classes; (iii) shall have control and command over the children even for some period in same institution/school; The above are prima facie sufficient to bring such a person within meaning of 'Teacher'. At this juncture, the definition available online, being relevant, is referred hereunder: 'A person who teaches in a school below the college level'. '(Education) a person who teaches in a school'. Thus, we are not inclined to accept an entirely different meaning for such teaching staff i.e. other category or non-teaching staff. We are conscious of the fact that involvement of third party (NTS/IBA) in recruitment policy may burden the authority (department) with some extra money but such departure cannot be allowed to continue merely for this reason alone particularly when adoption thereof shall make the recruitment procedure more transparent which is the ultimate objective of Article 27 of the Constitution, particularly keeping in view the importance of teaching staff on our future. The respondents, present, never denied the efficacy in making the recruitment process transparent and that through introduction of third party the ultimate object of filling the posts on merits is being achieved because it has least brought a pause, if not a full-stop, to involvement of influential to influence the recruitments procedure. The objectives can only be achieved by making policy(ies) by following the rules of justness, fairness and openness in consonance with commands of the Constitution, enshrined in different Articles and a departure thereof shall result into failure of justice, as is held in the case of Pir Imran Sajid and others v. Managing Director/General Manager and others (2015 SCMR 1257) that:

12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and

25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice. Thus, when it was undisputed rather admitted by the respondents even that third party introduction is serving the object of transparency in recruitment process and that nature of the duties to be taken from O.T., L.T, G.T, P.T.I., W.T. teaching staff is not different from that of a 'Science or General Teacher' who shall control or least influence our future (children of today). Not only this, but since it was not a disputed fact that result of all the candidates was not displayed which otherwise was the demand of justice and fair-play, therefore, acknowledging the object of third party induction in recruitment policy; importance of teachers and above all acknowledging that: 'the superiority is attached to merit and merit alone which one cannot achieve unless all measures to ensure transparency are taken.' the listed petitions were disposed of in terms, referred above.

9. It would be germane to mention that transparency is the mandatory requirement and compromise cannot be accepted on merits, thus, Chairman, Public Service Commission, shall also introduce same procedure with regard to appointments in education sector. A.R. of this Court shall ensure that compliance is made in its true letter and spirit. A copy thereof shall be provided to A.A.G. for compliance.

10. These are the reasons in continuity of short order dated 09.10.2015 whereby captioned petitions were disposed of. ZC/M-37/Sindh Order accordingly.