Order Sheet

Order Sheet.

HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

1. C.P.NO.D-315 of 2009.

2. C.P.NO.D-462 of 2009.

3. C.P.NO.D-567 of 2009.

4. C.P.NO.D-687 of 2009.

5. C.P.NO.D-689 OF 2009.

Date Order with signature of Judge

21.04.2010.

Mr. Nandan A. Kella, Advocate for petitioners alongwith the petitioners.

Mr. Allah Bachayo Soomro, Additional A.G. alongwith M. Azam Solangi DOE Elem: Badin and Khalid Mahmood DOE AC/Tr. Badin.

. . . .

Through instant petitions it is prayed that the respondents be directed to release the petitioners' outstanding arrears of salaries from April 2008 till date.

It is contended by Mr. Nandan A. Kella that the petitioners were appointed during the tenure of Caretaker Government purely on contract basis and till date are working as such and have drawn their salaries up to March 2008. Per learned counsel on 13.4.2008 Sindh Cabinet in its meeting decided that all appointments made during the tenure of Caretaker Government on contract basis are of no legal validity hence required to be cancelled. It appears to be an admitted position that in consequent to such decision no show cause notices nor any letter of termination was issued to the petitioners but their salaries were stopped from April 2008.

Mr. Nandan A. Kella, learned counsel for the petitioners has placed on record certified true copy of an order passed in Constitutional Petitions Nos.D-564 of 2008, 532 of 2008, 565 of 2008, 597 of 2008, 596 of 2008, 595 of 2008, 594 of 2008, 593 of 2008, 592 of 2008, 591 of 2008, 590 of 2008, 589 of 2008, 588 of 2008, 587 of 2008, 583 of 2008, 598 of 2008, 585 of 2008, 584 of 2008, 586 of 2008, 582 of 2008 and 60 of 2009, and states that despite specific undertaking of the Secretary Education that the salaries of all those employees who were issued offer and/or appointment letters and were drawing salaries prior to the decision of the Cabinet will be getting their salaries with arrears immediately, the petitioners till date have not been paid the arrears or their salaries.

Conversely, Mr. Allah Bachayo Soomro, learned Additional A.G. has place reliance on the judgments of the Apex Court in the cases of GOHAR MASOOD v. SECRETARY, HEALTH DEPARTMENT (2001 S C M R 1128) and PUNJAB TEXTBOOK BOARD v. MUHAMMAD AKHTAR (P L D 2001 SUPREME COURT 1032), and contends that matter pertaining to the demand of salaries is in fact a matter relating to the terms and conditions of the service and therefore, cannot be agitated before this Court and further that instead of issuing directions the case be remanded to the department.

We have heard the learned counsel for the respective parties and have perused the record as well as the case law cited at bar. It appears that in the case of Gohar Masood (Supra) the Apex Court had accepted all the appeals by remanding the cases to Department for decision afresh on merits and in accordance with law, as in that case termination letters were issued without issuance of show cause notices. In our humble view the dicta laid down by the Apex Court does not support the case of respondents from any angle, on the contrary it supports the case of the petitioner as in the instant case neither show cause notices nor termination letters whatsoever were issued to the petitioners and their services were dispensed with by way of an omnibus order issued by the Sindh Cabinet, however, on the basis of said decision the E.D.O. (Education) never issued any show cause notice or termination letter to the petitioners enabling them to resort to the remedy in accordance with law.

Whereas, in the case of Punjab Textbook Board (Supra) show cause notices were issued to all petitioners asserting therein that their appointments were made on political consideration and without the posts being advertised. However, in the instant case no such show cause notice whatsoever has been issued to the petitioners attracting the dicta laid down by the Apex Court in the said case.

It is important to reproduce the order of this Court in the petitions mentioned above whereby the controversy was finally decided by this Court on the basis of undertaking/statement made by the Secretary Education. The order reads as under:-

"We have asked the Secretary Education to make a statement in regard to the Petitions in which the grievance of the Petitioners is that they were appointed after completion of all codal formalities and now their salaries have been stopped. In the first category there are Petitioners who were issued offer letters and or appointment letters and they are working in different grades. Somewhere in April, 2008, the Sindh Cabinet has taken a decision that the appointments made during the caretaker regime were illegal, therefore, such appointments should not be allowed to serve and their salaries were stopped by the Finance Department. The Secretary Education has fairly conceded that Government never intended to oust them but wants to scrutinize their cases and in this respect the EDOs were directed to scrutinize all the cases. However, according to him, the said directives of the Government were not complied with by the EDOs. He further submits that all those employees who were issued offer and or appointment letters and were drawing salaries prior to the decision of the Cabinet will be getting their salaries with arrears immediately and they will continue to work on their original positions. However, the Government at the same time may examine the case of each employee in terms of the provisions of the Civil Servants Act and may take action if credentials of such employees are not upto the mark.

In view of this statement, the aforesaid Petitions are allowed. However, after scrutiny if the services of any employee is terminated in terms of Civil Servants Act, the aggrieved person may approach the appropriate forum. In the intervening period, salaries of such employees would be released with arrears and they will continue drawing salaries and perform their duties"

We would like to record our displeasure that the Secretary Education despite extending undertaking to release the arrears and the salaries of all the employees who were working and drawing salaries before the decision of the Sindh Cabinet, has not released the salaries of the petitioners, which appears to be violation of the undertaking extended before this Court. We see no reason to take different view in the instant petitions than the one taken by a Divisional Bench of this Court and reproduced above especially when the respondents on the directions of this Court dated 25.11.2009 in Constitutional Petitions No.D-689 of 2009, have released the salaries of those petitioners. We therefore allow these petitions and direct the Secretary Education to adhere to his undertaking by releasing the salaries of all the petitioners. However, the respondents would be at liberty to examine the case of each of the petitioners in terms of Civil Servants Act and may take action in accordance with law in case the credentials of such employees are not upto the mark.

Petitions stand disposed of.

JUDGE