ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-784 of 2008.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

22.04.2010.

For Katcha Peshi.

Umed Ali, Attorney of the petitioner is present in person.

Mr. Abdul Hamid Bhurgri, Addl. A. G., alongwith Sadiq Ali Katohar, D.O. Education, Sec. & H/Sec., Jacobabad, on behalf of E.D.O., Education, Jacobabad.

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The case of the petitioner is that she was appointed as Primary School Teacher in Taluka and District Jacobabad and the competent authority issued posting order dated 21.5.1995. She further stated in her petition that on 31.8.1995 without any reason or cause her services were terminated by the erstwhile S.D.E.O., Girls, Jacobabad. She further stated that one Mst. Jamila was appointed as Primary School Teacher and was removed from services, but she was reinstated on her post. She further stated that the act of the department is discriminatory against her.

On 17.3.2010, this Court directed the E.D.O., Education, Jacobabad to file specific comments against the rejoinder of the petitioner. Today, the E.D.O., Education, Jacobabad has filed para-wise comments on rejoinder of the petitioner, in which he has stated as under:-

“1) That Assistant District Officer Education Elementary Female Garhi Khairo vide her letter No:ADIE(F)/144, dated 19.3.2010 has narrated that Mst. Jamila D/o Munawar Ali KHaskheli PST Government Girls Primary School Jehan Pur, Taluka Garhi Khairo was re-instated by the then Executive District Officer, Education Jacobabad vide his office order No.EDO/Edu:/Admn-II/509 Jacobabad, dated 24.3.2006 is paid regularly.

2) That the Assistant District Officer Education Elementary Female Jacobabad vide her letter No:ADIE(F)/590 dated 19.3.2010 has disclosed that record is not available and report already furnished by her predecessor under No.295 dated 25.9.2009 is without supporting any documents, also has disclosed that precedessor has not handed over the charge fully. The matter regarding not handing over the charge is under process.

3) That both statements would relevant that there is different between both the cases as Mst. Jamila was neither terminated after reinstated and is performing her duties from her first reinstatement whereas the termination order of the Mst. Waheeda Parveen was issued under No.1756/95, dated 31.8.1995.”

We have heard attorney of the petitioner and Mr. Abdul Hamid Bhurgri, learned Addl. A. G., and perused the relevant record with their assistance.

The attorney of the petitioner reiterated the same facts as mentioned in the petition and contended that there is discriminatory action of the respondents as they have reinstated Mst. Jamila and refused for the reinstatement of the petitioner. The Assistant District Officer, Education, Elementary, Female, Jacobabad wrote a letter to District Officer, Education, Elementary, Jacobabad dated 25.8.2008 that she has no objection if Mst. Waheeda the petitioner is reinstated on her post. On 28.8.2008, the District Education Officer, Elementary, Jacobabad also wrote a letter to E.D.O., Education, Jacobabad for favourable consideration of the case of petitioner. In consequence of that letter the E.D.O., Education, Jacobabad also forwarded a letter dated 29.8.2008 to the D.C.O., Jacobabad for considering the case of the petitioner.

Mr. Abdul Hamid Bhurgri, learned Addl. A. G., contended that the petitioner has to avail the remedy from the department and if the department is not considering her case, she has to file appeal before the Service Tribunal.

Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, reads as under :-

“4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a) no action detrimental to the life, liberty, body,

reputation or property of any person shall be taken

except in accordance with law;

(b) no person shall be prevented from or be hindered in

doing that which is not prohibited by law; and

law does not require him to do.”

Article 25 of the Constitution reads as under :-

“25. Equality of citizens.--- (1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex

alone.

(3) Nothing in this Article shall prevent the State from

making any special provision for the protection of women

and children.”

In the case of Administrator, District Council Larkana & another v. Ghulab Khan & 5 others, 2001 SCMR 1320, the Hon'ble Supreme Court was pleased to observe as under :-

“In our considered opinion their salaries cannot be withheld on the ground that their appointment was illegal being made in violation of the relevant recruitment rules and in fact action should have been initiated against those who are sitting the helm of affairs for such irregularities. The respondents cannot be held responsible in any manner whatsoever. In our view substantial justice has been done vide impugned order which cannot be disturbed on mere technicalities. The direction to withhold their salaries in fact suffers from inherent vice, it is void ab initio and cannot be given effect to. It is well-settled by now that the “Principal object behind all legal formalities is to safeguard the paramount interest of justice --- Legal precepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and malafides.” (2000 SCMR 556 at 561-C).”

From the record we have observed that Mst. Jamila was reinstated in her service and the petitioner was declined, which act of the respondents is discriminatory in the case of the petitioner. Under Article 25 of the Constitution of Ismalic Republic of Pakistan, 1973, all the citizens are equal and equal treatment be given to all the citizens. In the circumstances, we allow this petition and direct the respondents to reinstate the petitioner in service without any back benefits.

JUDGE