2023 P L C (C.S.) 1526
[Balochistan High Court]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
MEHBOOB ALI RIND and others
Versus
SECRETARY EDUCATION BALOCISTAN and others
Constitutional Petitions Nos.231, 1065 and 1814 of 2022, decided on 20th March, 2023.
(a) Civil service---
----Appointment ---Withholding issuance of appointment order ---Legality ---Vested right of
appointment ---Scope ---Department invited applications from female candidates for teaching
positions in each district of the Province ---Petitioners, along with others, applied on time ---
After scrutiny, qualifying tests were conducted, followed by interviews conducted by the
District Recruitment Committees (DRCs) ---District Recruitment Committees (DRCs)
recommended the petitioners and other qualified candidates for appointment ---However, the
department withheld the issuance of appointment letters without providing any valid reason, except stating that the posts were related to a donor -funded project and the delay caused the
donor to withdraw funding for the project ---Department's reasoning was unjustified, as they
failed to produce the donor's letter and the provincial government's policy despite repeated orders ---Moreover, Secretary of the Education Department recognized the sensitivity of the
matter and submitted a summary for the petitioners' and others' adjustment ---Consequently,
the posts were created and included in the PSDP (Public Sector Development Programme) ---
Department could not be allowed to decline or withhold the issuance of appointment orders in favor of candidates who had gone through the recruitment process and whose names were duly recommended by the Recruitment Committee, especially when the recommendations had not been challenged---Vested rights had been created in favour of the petitioners and such rights could not be taken away ---Consequently, the constitutional petitions were
accepted, and the judgment's benefit was extended to all candidates who had qualified the tests, interviews, and were recommended by the DRCs based on merit ---Department was
directed to issue orders of appointment accordingly.
Muawar Hussan v. Chief Secretary, Government of Balochistan and 3 others 2017
PLC (C.S.) 81; Anwar Shah and 5 others v. Secretary Government of Balochistan Irrigation and Power Department, Quetta and 5 others 2014 PLC (C.S.) 250; C.Ps. Nos. 1199, 1201, 1203, 1203, (s)148, (s)149 and (s)151 of 2021 and Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2004 SCMR 1864 rel.
(b) Constitution of Pakistan ---
----Art. 25 -A---Right to education ---Scope and significance ---Education is either formal or
informal ---Formal education is imparted through the medium of educational institution e.g.
School, Colleges, etc. set up in the public and private sector ---Informal education is a general
term for education outside of standard school setup---It refers to various forms of alternative
education such as non- schooling or house schooling, etc.---Since right to education has been
declared to be a fundamental right guaranteed by the Constitution, the Courts are under obligation to protect such right ---Right to education is a Fundamental Right as it ultimately
affects quality of life which has nexus with other fundamental rights guaranteed under Arts. 4 & 9 of the Constitution---Awareness of rights and duties, growth of civic consciousness in a society, enjoyment of Fundamental Right guaranteed under the Constitution and legal empowerment of people depend to a great extent on quality of education---People cannot be free in the real sense unless they are properly educated.
Students of Government Girls College, Kuchlak v. Government of Balochistan 2012
CLC 168; Fiaqat Hussain and others v. Federation of Pakistan PLD 2012 SC 224; Zubair Ahmed Khaskheli v. Federation of Pakistan and 2 others PLD 2015 Sindh 118 and Syed Nazeer Agha and another v. Government of Balochistan, PLD 2014 Bal. 86 rel.
(c) Constitution of Pakistan ---
----Art. 25 -A---Right to education ---Scope ---State is responsible to provide education to its
citizens, children and youth without any discrimination of race, religion, caste, sex, residence or place of birth.
(d) Constitution of Pakistan ---
----Art. 25---Equality of citizens ---'Equal protection of law'---Scope ---Equals must be treated
equally and similarly circumstanced and situated persons must be dealt alike, as it is a basic and fundamental principle, which rests upon justice under the law.
Ilahi Bakhsh Mengal and Ahmed Nawaz Mengal for Petitioners.
Barrister Muzafar Umrani and Adnan Ejaz for Petitioners (in C.P. No.1065 of 2022).
Muhammad Ali Kanrani, Hazrat Ali Kakar and Yasir Nizami for Petitioners (in C.P.
No.1814 of 2022).
Tahir Iqbal Khattak, Additional Advocate General along with Harron- ur-Rasheed,
Deputy Secretary, Aslam Pervez, Deputy Director (Judicial), Nusratullah and Baseer Agha, Law Officer, Education Department.
Date of hearing: 7th March, 2023.
JUDGMENT
ABDULLAH BALOCH, J. ---Since common question of facts and law is involved in
Constitutional Petitions Nos.231 of 2022, 1065 of 2022 and 1814 of 2012, thus the same are
being decided through this common judgment.
The petitioner in C.P. No.231 of 2022 sought the following prayer:
"In view of the foregoing facts, reasons and circumstances, it is most respectfully prayed that this Honourable Court may kindly be pleased:
a) To direct the respondents to adopt immediate measurements to recruit and fill the vacant posts of education in the District Awaran.
b) To direct the respondents to adopt necessary measurements with regard to reopening the closed schools in District Awaran.
c) Any other further/additional relief (s) which this Hon'ble Court may deem fit and proper in the circumstances of the present case."
The C.P. No. 1065 of 2022 carries the following prayer:
"It is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare the impugned act of respondents of not finalizing the recruitment process and issuing the appointment order of the successful candidates/petitioner to be illegal, consequently the respondents may be directed to issue appointment order of the successful candidates/petitioner for the post of Elementary School Teacher (EST -B-
15), District Awaran with any other relief and cost of the proceedings throughout in the interest of justice."
While in C.P. No. 1814 of 2022 the petitioners sought the following reliefs:
"In view of above it is, therefore, accordingly prayed that this Hon'ble Court may graciously be pleased;
a) To declare that the impugned act of the respondent denying/withholding the appointment orders to the petitioners against the posts of EST, despite DRCs concerned recommended the petitioners for appointment, is illegal and of no legal effect.
b) To direct the respondents to issue appointment orders/letters to the petitioners against the posts of EST (BPS -15) as recommended by the DRCs concerned.
c) Any other relief deemed fit and better by this Hon'ble Court, in the interest of equity, fair play and justice."
Facts of C.P. No.231 of 2022:
2. Brief facts of the instant petition are that there are 381 Government Schools are in the
entire district of Awaran including Tehsil Jhao and Mashkey and out of which more than 176 schools are closed since long due to which the inhabitants of district are being deprived from their fundamental rights. Besides, there are approximately 581 different vacant posts of grade 09 to grade 15 for both male and female as well as 276 vacant posts of grade 17 of male and
female, are still vacant in different schools of the District Awaran; that the residents of the
area approached the respondents with regard to resolve the issues, but the respondents have paid no heed and disregarded their concerns.
3. Learned counsel for the petitioner contended that it is the constitutional responsibility
of the State to provide education to its citizens as guaranteed under Article 25 (A) of the Constitution of Islamic Republic of Pakistan, 1973 but the Government of Balochistan has failed to discharge its responsibilities extending the facility of education to the people of the Balochistan particularly Awaran District. He further contended that there are hundreds of schools are either closed or non- functional, while there is also shortage of teachers of
different categories more than 700 -800 since long time; that the children of the area i.e. girls
and boys are deprived from right of education and most of the schools having no buildings and shelter less; that the people of the area time and again approached the high -ups of the
government, but no heed was paid by the concerned authorities to resolve this issue. Ultimately the children, who are out of school either working as labour or possibly being put in illegal activities by the mafia. He further contended that the people do not want any other facility of the life, they only request for functionalizing of schools to get education.
4. Conversely, the learned Additional Advocate General contended that the Government
of Balochistan taking all measures to functionalize the schools of the area and to restart the schools and fulfill the vacant posts of the required teaching staff. He further contended that all such measures are being taken by the Government of Balochistan to meet the requirements of education in all over the Balochistan particularly in Awaran District. In such behalf the respondents have taken all steps with the higher authorities to resolve this important issue as soon as possible.
5. In C.Ps. Nos. 1065 and 1814 of 2022 the learned counsel for the petitioners
unanimously contended that the respondents through press publication invited applications for the posts of Elementary School Teacher ("EST") (BPS -15) on 18th September 2020
through daily newspaper Jang, Quetta to fill up the Six (6) posts of female teacher from each district of Balochistan for the purpose of female education. They further contended that the petitioners along with other applicants have applied for the such purpose, the test and interviews were conducted and thereafter the recruitment committee recommended the petitioners and other candidates for appointment, but the respondents are reluctant to issue their appointment letters. It is further contended that the petitioners time and again approached the respondents for issuing their appointment letters, but the respondents delayed the matter by one or the other pretext without any plausible justification. They further contended that the posts are still available and reflected in the budget of 2022- 23, but the
respondents have failed to discharge their liability to issue the appointment letters of the petitioners. They further contended that due to waiting for their appointments, there is an apprehension that the petitioners being over aged and being penalized. They further contends that basically the posts were created by the Government of Balochistan to fulfill the requirement of female teachers for better education of girls of the backward areas without any discrimination in all over Balochistan, but the matter was delayed for unknown reasons, which caused serious prejudice to the petitioners and others, who have qualified for the such posts.
6. On the other hand, learned Additional Advocate General assisted by the Deputy
Secretary, Education (Schools) and Deputy Director (Judicial) and Law Officer of Education
Department contended that the above posts were advertised by the respondents to fulfill the requirement of female teachers in the all districts of Balochistan, but the same were project posts being funded by the Global Partnership for Education Balochistan (GPE) European
Union (EU), Project Management Unit (PMU), but due to Covid- 19 the test and interviews
conducted by the District Recruitment Committees (DRCs) could not be finalized within
time, thus project was closed by the donor. The learned AAG further contended that the respondents have moved the summary to the competent authority for appointment of the petitioners and others, who have qualified the test and interviews, but the summary moved for approval is still awaited. He further contended that it is the prerogative of government either to fill up the posts or to abolish all posts, as such no right has been accrued to the petitioners, thus the petitions are liable to be dismissed.
7. Heard learned counsel for the parties and perused the record minutely with their
valuable assistance, since all the petitions are interlinked with each other either for functionalizing of schools and fulfillment of posts of male and female teachers of the Awaran district in particular and other districts of Balochistan in general. As far as the Petition
No.231 of 2022 is concerned filed by the petitioner, who is an inhabitant of the District
Awaran showing that 176 schools in the entire district Awaran including Tehsil Awaran, Jhao and Mashkey are lying closed since long time, while approximately 581 different vacant posts of male and female teachers of grade- 9, grade -15, as well as 276 posts of grade -17 of
male and female are still lying vacant since long time in the Awaran district, but the Government of Balochistan has failed either to functionalize the closed schools or to fulfill the vacant posts of male and female teachers of the Awaran district. Even otherwise, the parawise comments so filed by the respondents did not specifically deny the above facts of
non- functionalization of the schools and shortage of teachers, rather the same fact was
conceded in reply of parawise comments of respondents Nos. 1 and 2 in para No.E -I, which
is categorically mentioned as under:
"E-I. That content of the Para under reply is strongly denied and vehemently
contested with the clarification that Respondent No.2 has issued letter on 17.11.2022 wherein reflected that School Education Department has moved a Summary to the Hon'ble Chief Minister of Balochistan with the request to allow the department to hire teaching staff either on contract basis or recruitment of teaching staff on regular basis, rationale behind hiring teaching staff on contract basis is that to tackle burning issue on speedy track basis."
8. Though reading of above para of reply indicates that the respondents moved a
summary to the Chief Minister Balochistan for recruitment of teaching staff either on contract or regular basis to rationalize the non -functional schools and meet requirement of
teachers, but failed to justify such long period of closing of schools, which prima facie reflects that the government of Balochistan has failed to fulfill its constitutional obligation which is guaranteed under Article 25 (A) of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:
[25-A. 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.]
9. The Article 25 -A has been inserted in the Constitution by the Constitution (Eighteenth
Amendment) Act, X of 2010 which identifies the education as one of the Fundamental Right
of the people. Generally, the education is either formal or informal. Formal education is imparted through the medium of educational institution e.g. School, Colleges, etc. set up in the public and the private sector. Informal education is a general term for education outside of standard school setup. It refers to various forms of alternative education such as non-schooling or house schooling etc. Since right to education has been declared to be a Fundamental Right guaranteed by the Constitution, the Courts are under obligation to protect
such right. Right to education is a fundamental right as it ultimate affect quality of life which
has nexus with other fundamental rights guaranteed under Articles 4 and 9 of the
Constitution. Awareness of rights and duties, growth of civic consciousness in a society enjoyment of Fundamental Right guaranteed under the Constitution and legal empowerment of people depend to a great extent on quality of education. People cannot be free in the real sense unless they are properly educated. This Court in the case of "Students of Government Girls College, Kuchlak v. Government of Balochistan, 2012 CLC 168 held that:
"Right of every men and women to acquire ability to read and write and attain knowledge without discrimination. Mandate of Islam and Constitution stated."
While the Hon'ble Supreme Court of Pakistan in its landmark judgment titled as
"Fiaqat Hussain and others v. Federation of Pakistan, (PLD 2012 Supreme Court 224)" held as under:
"The Holy Qur'an has made grate emphases to seek and impart knowledge to quote: -
"And He taught Adam the nature of all things; then He placed them Before the angels, and said: "Tell Me The nature of these if ye are right".
They said; "Glory to Thee: of knowledge We have none, save what Thou Hast taught us: in truth it is Thou Who art perfect in knowledge and wisdom. [2:31- 32]"
Thus, in Surah Taha the Prophet (P.B. U.H) has been asked to pray in the following words: -- "Lord increase my knowledge. [20: 114] "
The Quran says that We send the Prophets to teach people wisdom. In Surah Baqra (Heifer) it is ordained:
"But the best of provisions is right conduct so fear Me, O ye that are wise". (2:197).
2. Similarly, the Holy Prophet (Peace be upon him) has emphasized on acquiring knowledge in the following words: --
"Seek knowledge from the cradle to grave."
In another Hadith, it has been said: --
"Seek knowledge even as far as China."
While comparing an "Alam"with a martyr, the
Holy Prophet (P.B. U.H.) has said:
"A drop of sweat of the brow of thinker is better than the thousand blood drops of the
martyr"
On another occasion it has been said: --
"Whoever seeks a way to acquire knowledge Allah will make easy his way to Paradise" [Sahih Muslim]"
With regard to importance of education the Hon'ble Sindh High Court in the case of
"Zubair Ahmed Khaskheli v. Federation of Pakistan and 2 others, reported in PLD 2015 Sindh 118" held as under:
"Constitutional provisions are to be read harmoniously with each other and therefore, if Article 25 -A is read with Article 37 of the Constitution of Pakistan, 1973 and more
particularly, sub- clauses (a), (b) and (f), and also Article 38 for promotion of social
and economic well being of the people, it becomes clear that the contents of curriculum have to be such that they raise the younger generation of this country with awareness of their fundamental rights. If the future generation is grown with knowledge of its fundamental rights, it shall help remove illiteracy, raise awareness
and improve the basic quality of life, such as food, clothing, housing, education and
medical facilities, irrespective of sex, caste, creed or race as to live with dignity. Therefore, it is the obligation of the State to ensure enforcement of fundamental rights guaranteed under the Constitution and to apprise the citizens, in particular, the students of such rights and the mythology for their enforcement."
10. In identical cases pertaining to Education Department (Schools) of Government of
Balochistan, this Court in its landmark judgment titled as "Syed Nazeer Agha and another v. Government of Balochistan, PLD 2014 Balochistan 86" observed as under:
"High Court directed that Provincial Government to carry out a physical audit of schools situated in each district of province and to maintain a hardcopy as well as a computerized/photographic record with names of teachers employed/posted at each school and periodically to update the same; that Provincial Government should measure lands on which schools were situated and relevant entries be made in revenue records to secure the same and to prevent encroachment and illegal transfer of school properties; that Provincial Government to ensure that school buildings display in
conspicuous place the fact that it was a school and within the school building there should be disclosure of teachers employed at each school; that Provincial Government should inform the Board about number of subjects and books that were required for next academic year well in advance and Finance Department should make necessary allocation in budget; that Board should print and distribute school books in timely manner to ensure that the same were available when academic year would start; that
Principal or teachers of each school should maintain a record of children attending school and mark their daily attendance; that Education department, Provincial Government should devise a comprehensive format for inspection of schools and District Education Officer should ensure that such inspection was carried out periodically in his/her district and that Provincial Government should take tangible
measures to ensure that all children, boys and girls, from the age of five through
sixteen attend school ---High Court further observed that for the consideration of
Provincial Government that School buildings should he designed and constructed in accordance with the prevailing physical environment, ensuring that the school looks welcoming, is environmentally friendly and does not require frequent maintenance. In
this regard the Government may consider not to have the facade of the school
building and walls plastered or painted and instead retain the brick- look, which will
result in considerable saving of cost and also ensure the same continues to look
presentable."
11. Keeping in view the mandate of Islam and provisions of the Constitution of Islamic
Republic of Pakistan, 1973 and perusal of judgments quoted above made it clear that the State is responsible to provide education to its citizens, children and youth without any discrimination of the race, religion, caste, sex, residence or place of birth.
Thus in view of the above discussion, the C.P. No.231 of 2022 is allowed and the
Government of Balochistan and the respondents are directed to functionalize all the closed schools of Awaran District and fill up all the vacant posts of male and female teachers particularly of Awaran district and the rest of Balochistan within the period of three months by taking all measures.
C.Ps. Nos.1065 and 1814 of 2022:
Constitutional Petitions Nos. 1065 and 1814 of 2022 are pertaining to the
appointments of EST female teachers of all over Balochistan, whereby the respondents invited applications from suitable candidates through press publication dated 18th September
2020 to fulfill Six (6) posts of female teachers i.e. (EST B -15) from each district of
Balochistan. Perusal of record reflects that the petitioners along with others applied for such posts well within time after scrutiny the test and interviews were to be conducted by the NTS. However, the NTS was failed to conduct the test within time after lapse of 9 months, whereafter the same contract was awarded to "Candidates Testing Service Pakistan" (CTSP), who after scrutiny conducted test, whereby the petitioners and others qualified the test thereafter the District Recruitment Committee (DRC) of each District conducted interviews and submitted their recommendations for appointments of the petitioners and others of each
district of Balochistan well within time, but the respondents by one or the other pretext
withheld the issuance of appointment letters of the petitioners without assigning any cogent
reason except showing that the posts were relating to a project, which was funded by a donor and due to delaying tactics and delaying process by the DRCs the donor denied to extend its funding in the said project, assigning of such reason by the respondents is not justified as time and again through order sheets the respondents were called to place on record the letter of the donor and policy of Government of Balochistan, but they have failed to place on
record such documents till date of arguments. The respondents have also failed to bring on record the said letter, hence bald denial of the respondents would not be helpful for them to outright accept their contention. Even otherwise, it is apparent from the record and documents annexed with the parawise comments of the respondents i.e. the Secretary, Education Department, while realizing the sensitivity of the situation moved a summary on
28th January 2022 to the competent authority for adjustment of the petitioners and others,
who have been qualified the test and interviews and recommended by the DRCs of each district of Balochistan for their appointments. Relevant portion of summary initiated by the respondent No.1 i.e. the Secretary Schools reads as under:
"In view of above, it is proposed that:
(i) The Secondary Education Department may be allowed to continue with the current recruitment process of hiring (200) ESTs (BPS -15) on contract basis for (100) newly
upgraded Middle Schools throughout Balochistan for a period of one year. However, it will require an estimated cost of 57.5616 million PKR from non -development
budget in the current Financial Year 2021- 22. OR
(ii) The Government of Balochistan created (85) posts of EST (BPS -15) for already
upgraded (85) Primary Schools into Middle Level under Balochistan Education Support (BES) Project in the Financial Year 2020- 21 (F/C). The Government of
Balochistan may create additional (115) posts of EST (BPS -15) FOR (100) newly
upgraded Middle Schools under BES Project thought a Special SNE in the current Financial Year 2021 -22 to appoint (200) ESTs (BPS -15) duly recommended by the
District Recruitment Committees (DRCs) on regular basis in order to avoid the lengthy recruitment process, as well as to functionalize the newly upgraded Schools throughout Balochistan. "
12. Likewise another summary was also processed by the Secretary (Schools) on 17th
June 2022 to the competent authority through proper channel, wherein all the process has been completed at para No.8 of the summary, which is reproduced as under:
"8. Consequently, the Secondary Education Department, as per approved Paras -8 and
18/N of the ibid summary, has taken up the instant matter with the Finance Department in the SNE meeting for creation of new posts for newly upgraded (100) Middle Schools. The Finance Department, in principle, has agreed to create the required number of EST (BPS -15) posts in the Budget of FY 2022- 23 for the
upgraded schools."
13. Record further reflects that the above summary so processed by the Education
Department for competent authorities the same was also endorsed by the Chief Minister Inspection Team (CMIT) in its findings dated 10th August 2022 recommended as under:
"4. Perusal of record suggests that the appointment process had been carried out prior to availability of required numbers of posts and the project was closed on 30th August 2021 i.e. three (03) months after the selection process. Thereafter, the Secondary Education Department moved a Summary requesting therein for creation of required number of posts (F/D). This act of the department is violation of APT Rules. Now at this stage we recommend to appoint these selected teachers, as per spirit of the project, on contract and school specific of the Union Councils where these upgraded schools are located and they cannot be transferred. Para 18 of the said Summary speaks that creation of posts for the subject appointments may taken up during the process of SNE. "
14. Consequently the posts were created and reflected in PSDP (Budget 2022- 23) and the
copies of said PSDP 2022- 23 are available on record and the same documents have not been
denied by the respondents. The tests were conducted by the CTSP and the interviews were
conducted by the DRCs comprising of following members:
1. Deputy Commissioner of the concerned district. Chairman
2. The District Education Officer of the concerned
district. Member
3. The District Accounts Officer of concerned district. Member
4. The District Officer Education (Male) of the
concerned district. Member
5. The District Officer Education (Female) of the
concerned district. Member
Aforesaid tests and interviews were conducted in pursuance to the publication made
in Daily Jang, Quetta dated 18th September 2020 and the recommendations of recruitment
committees do not suffer from any illegality, irregularity and perversity, therefore, withholding of the issuance of orders of appointment of the petitioners is mala fide intention of the respondents having no legal sanctity.
In this regard we are fortified by the judgment of this Court passed in the case of
"Muawar Hussan v. Chief Secretary, Government of Balochistan and 3 others, 2017 PLC (C.S.) 81" relevant portion whereof is reproduced as under:
"16. Seventhly, the proposal of fresh test and interview by the Department is not based on any legal basis nor there is any rational and wisdom behind the suggestion. The proposal smacks mala fide and lacks bona fide and appears to be an attempt by some of the officials to play with the rights of poor people just because of their bureaucratic mind which is not acceptable. The bureaucratic approach and autocratic attitude of some of the officials have already been deprecated by this Court in its judgment delivered in Constitutional Petitions Nos. 1104, 1144, 1233, 1234 of 2015 and 224, 343, 351 and 352 of 2016. For the sake of convenience relevant observations read as under:
"However, without assigning any plausible reasons, the said decision was recalled and a fresh publication was made. The candidates participated in the process of test throughout Balochistan from every nook and corner of the province, but, unfortunately, once again the process was set at naught and nullified on the ground that major irregularities have been committed in the process of test and interviews. It
is painfully observed that some of the officials in the Bureaucracy are least interested in conducting fair and transparent test and interviews for the appointments sought to be made by it. Till the time of drawing these lines, perhaps, twice/thrice publications and its cancellation have been made and expenses of millions of rupees were incurred by the State exchequer. Similarly, the candidates, who participated in the process of test from every part of the province, may have incurred expenses, apparently, beyond their means and the said amount cannot be calculated, as no data is available. The
poor people of the province were subjected to bear heavy expenses for no fault on
their part, except the incompetency, inefficiency, incapability and poor approach on the part of some of the officials of the department. This is not the case of one department, rather we have noticed such practice in a number of cases that after completion of the recruitment process, without any plausible explanation, the same
are cancelled for one or the other reasons. It appears that, perhaps, the said officials
have been politicized and the function sought to be performed by them appears to
remain subservient to political considerations."
17. Eighthly, we are cognizant and conscious of the fact that only one candidate has filed this petition, however, we are equally conscious of the command of Constitution that all equals must be treated equally and similarly circumstanced and situated persons must be dealt alike, as it is a basic and fundamental principle on which rests justice under the law. Admittedly, all the recommendees are not party, yet stand on same footings, therefore, deserve alike treatment and the principle of equal treatment entitles them for the same relief. By holding view, we are fortified with the case laws titled as "2009 SCMR 187 Muhammad Nawaz v. Managing Director, Small Business Finance Corporation" and "2010 SCMR 421 State Bank of Pakistan v. Mumtaz Sultana" whereby following observations have been made:
"2009 SCMR 187 Muhammad Nawaz v. Managing Director, Small Business Finance Corporation"
"Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If evenhanded justice is not administered, it can have many adverse and negative effects on a society. It can cause discontentment and frustration in the social set -up. There can be no denial that social justice is an objective and enshrined
in our Constitution."
"2010 SCMR 421 State Bank of Pakistan v. Mumtaz Sultana"
"The ambit of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 would get attracted with all force. There is no dearth of precedents where as a result of the legal position stated by the Court benefits accruing, were given even to those who were not party before this Court. Reference in this context may be made to Hameed Akhtar Niazi's case (supra), Chairman Pakistan Railways case (supra), Khawaja Abdul Hameed Nasir's case (supra) and Aamir Ikram's case (supra)".
18. Ninthly, last but no the least. To seek and gain knowledge is the Islamic obligation of every Muslim (male and female) and to promote and impart education is the Constitutional obligation of the State. How the "State" and the "Subject" should discharge their reciprocal obligations, the remedy lies in establishing educational institutions, providing infrastructure and sufficient funds for the same, appointing academic and ministerial staff by the former, taking interest, working hard and leaving no stone unturned for gaining and seeking knowledge by the latter. While being the custodian of the Constitution and exercising the Constitutional jurisdiction, we are under obligation to ensure that the State does not fail in performing its constitutional obligation. Thus, we expect that the Chief Secretary Balochistan shall take notice of such facts and will not allow any individual official to play mischief
with the fate, future and fundamental rights of the citizens. In the case of Fiaqat
Hussain and others v. Federation of Pakistan (PLD 2012 SC 224) the Hon'ble Supreme Court of Pakistan made observation about the implementation of Article 25-A read with Article 29(1) and Article 37 of the Constitution, which mandate the 'State' to promote with the special care the educational and economic interest of backward
classes or areas. It was further observed that it is the obligation of the State to ensure
enforcement of fundamental rights guaranteed under the Constitution.
In the light of above discussion and keeping in view of the huge interest of public at
large it is held that:
(a) The test and interview conducted in pursuance of publication dated 16th November, 2014 in Daily Express News, the recommendations of the Recruitment Committee do not suffer from any illegality, irregularity and perversity, therefore, the proposal of the Education Department to conduct fresh test and interview has no legal effect and significance."
15. Reliance is also placed in the judgment of this Court titled as "Anwar Shah and 5
others v. Secretary Government of Balochistan Irrigation and Power Department, Quetta and 5 others, 2014 PLC (C.S.) 250", wherein this Court has held as under:
"5. There is no denial of the fact that the petitioners right from their forefathers and by birth are the permanent residents of Zhob. This fact could not be refuted by the respondents in any manner. There is also no denial of the fact that at the time of test and interviews the respondents have not raised any objection that they are not local of District Zhob and an agreement has been executed between the affectees and the respondents. Moreover, no condition was mentioned in the publication that only the
residents of Sabakzai area can apply for these posts. Perusal of the record shows that the agreement was executed between the parties on 17th January, 2007; whereas, applications from the candidates were invited through advertisement, which was published in the daily newspaper Jung, Quetta on 6th May, 2010 and 6th May, 2011. Even the petitioners were not informed at the time of tests and interviews that it is not possible for them to perform their duties at the Dam as they are residents of Zhob area. The said status of the petitioners was accepted when they were selected by the Selection Committee. Thus the matter had become past and closed chapter for all intent and purpose. Perusal of the publications dated 6th May, 2010 and 6th May, 2011 also show that the application for the said posts was invited from the candidates of District Zhob. The subsequent somersault made by the respondents at the behest of some influential persons having vested interest in the matter, declining to issue the appointment orders of the petitioners on the ground that they are not residents of Sabakzai area, appears to us a clear act of mala fide on the part of respondents. The object was to undo an act, which had created vested rights of inviolable in favour of the petitioners. These rights could not be snatched in the manner as has been done by the respondents."
16. Reliance is placed on the judgment dated 14th September 2021 passed by this Court
in C.Ps. Nos. 1199, 1201, 1203, 1203, (s)148, (s)149 and (s)151 of 2021 related to the Education Department for appointment of JETs teachers, who qualified tests and interviews
of CTSP as well as DRCs, but the department was reluctant to issue their appointment letters,
this Court while allowing all the petitions in its landmark judgment observed as under:
"11. The perusal of above proposals would show that through these summaries, the Administrative Department seeks approval regarding relaxation of bar placed in Clause 4(2)(3) and (7) of the Recruitment Policy,2019 on appointment of those candidates who have acquired the essential professional qualification of CT and PTC after December 2012. The comparative study of Recruitment Policy of 2019 and the Balochistan Secondary Education Department (School Branch)(Men's Section)(BPS -1
to 15) Service Rules, 2020 would reveal that the Policy is not consonance with the said Rules made in that behalf, in exercise of the powers conferred by Section 25 of the Civil Servant Act, 1974. The said Rules contain no provision to render it necessary to acquire professional qualification of CT/PTC on or before December, 2012. The Policy was made prior to the framing of the Rules. If at all, such embargo was required/ intended to be placed, then a provision to that effect should have been incorporated in the relevant Rules.
12. Admittedly, the Department cannot be allowed to decline the issuance of appointment letters in favor of the petitioners as there was no such condition in the
publication and there is no fault on the part of the petitioners, who have gone through
the process of recruitment and their names were duly recommended by the concerned Recruitment Committees. Needless to observe that none has challenged the sanctity attached with the recommendations of the said recruitment committees. During the course of proceedings, we were informed that besides the petitioners, a number of candidates were recommended by the concerned recruitment committees and out of said recommended candidates, only the present petitioners have filed the
aforementioned petitions. It is mandate of law that equals must be treated equally and similarly circumstanced and situated person must be dealt alike, as it is basic and fundamental principle, which rests justice under the law. Admittedly, all those, who were recommended by the DRCs, are not party to the instant proceedings, yet stand on same footings, therefore, deserve alike treatment and the principle of equal treatment entitles them for the same relief. By holding this view, we are fortified with the case laws titled as "Muhammad Nawaz v. Managing Director, Small Business Finance Corporation" (2009 SCMR 187) and "Sate Bank of Pakistan v. Mst. Mumtaz Sultana" (2010 SCMR page 421), whereby following observations have been made:
2009 SCMR 187 "Muhammad Nawaz v. Managing Director, Small Business Finance Corporation"
"Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If evenhanded justice is not administered, it can have many adverse and negative effects on a society. It can cause discontentment and frustration in the social set -up. There can be no denial that social justice is an objective and enshrined
in our Constitution."
2010 SCMR 421, "State Bank of Pakistan v. Mst. Mumtaz Sultana"
"the ambit of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 would get attracted with all force. There is no dearth of precedents
where as a result of the legal position stated by the Court benefits accruing, were
given even to those who were not party before this Court. Reference in this context may be made to Hameed Akhtar Niazi's case (supra), Chairman Pakistan Railways case (supra), Khwaja Abdul Hameed Nasir's case (supra), and Aamir Ikram's case (supra)."
13. We are also conscious of the fact that the Province of Balochistan lags far behind
in education from sister Provinces. There is a dismal state of education despite
announcement of education emergency by the Provincial Government. Admittedly
most of the Schools are without basic facilities and they consist of single room with just a single teacher. A number of schools are either closed or not smoothly functioning due to non- availability of teaching staffs, which is a serious problem. The
students are badly suffering due to non- availability of teachers and continuous strikes,
observed by different Teachers' Associations and closure of schools on account of worst law and order situation. (underlining is our)
17. Definitely, a Department cannot be allowed to decline or withheld the issuance of
appointment orders in favour of the petitioners as there was no such condition in the publication and there is no fault on the part of the petitioners, who have gone through the
process of recruitment and their names were duly recommended by the concerned
Recruitment Committees. Needless to observe that none has challenged the sanctity attached with the recommendations of the said recruitment committees. During the course of proceedings, we were informed that besides the petitioners, a number of candidates were recommended by the concerned recruitment committees and out of said recommended candidates, only the present petitioners have filed the aforementioned petitions. It is mandate of law that equals must be treated equally and similarly circumstanced and situated person
must be dealt alike, as it is basic and fundamental principle, which rests justice under the law. Admittedly, all those, who were recommended by the DRCs, are not party to the instant proceedings, yet stand on same footings, therefore, deserve alike treatment and the principle of equal treatment entitles them for the same relief.
18. It is crystal clear that the petitioners have gone through the process by means of
appearing in the test and interview conducted by the CTSP and DRCs, whereafter recommended by the recruitment committees, thus the vested rights have been created in favour of petitioners and such rights cannot be taken away. In this regard we are fortified by the judgment of Hon'ble Supreme Court of Pakistan in the case titled as "Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others, 2004 SCMR 1864; wherein the Hon'ble apex Court held as under:
"The spirit of rule is that once an order is given effect and in consequence thereto certain rights are created in favour of a person, such rights cannot be subsequently taken away. This Court in all similar case Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 held as under: ---
"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case
of all authorities empowered to pass orders to retrace the wrong steps taken by them.
The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
For the reasons discussed hereinabove and keeping in view the larger interest of
general public, the Constitutional Petitions Nos. 1065 and 1814 of 2022 are allowed and the benefit of this judgment is also extended to all candidates who qualified the test, interviews and recommended by the DRCs on merit. Consequently, the respondents are directed to issue
orders of appointment of petitioners and all those, who were qualified the test, interviews and
duly recommended by the DRCs immediately without loss of time.
Copy of this judgment be sent to the Chief Secretary and the official respondents for
information and strict compliance.
SA/108/Bal. Petitions allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.