INHABITANTS OF VILLAGE NINGA PANI NARIYOLA, DISTRICT BAGH Versus DISTRICT EDUCATION OFFICER (FEMALE), BAGH, AZAD KASHMIR
M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby a writ in the nature of mandamus is solicited to direct respondent No.4 to join her Present place of posting i.e. Government Girls Primary School Ninga Pani Nariyola. A further direction to quash the impugned order bearing No.304 dated 15-5-2012, whereby Girls Primary School Ninga Pani Nariyola is shifted in Kalse Ninga Pani, is also craved.
2. The precise facts culminating into filing of the instant writ petition are that petitioners are first class state subjects of Azad Jammu and Kashmir and permanent residents of village Ninga Pani Nariyola Tehsil and District Bagh. It is stated that Azad Government of the State of Jammu and Kashmir constructed a Girls Primary School in village Ninga Pani Nariyola, in the year 1976, which was destroyed in devastated earthquake of October, 2005, hence, new shelter for female students was built by an N.G.O. upon the same place. It is maintained that 54 students are studying in the aforesaid school where one teacher was granted maternal leave, hence, respondent No.4 was posted vide order dated 26-4-2012. It is alleged that despite said order respondent No.4 never performed her duties in the said school, hence, people of locality hired services of a teacher from private sector, who is being paid by the people of the said locality. It is averred that an application was moved by inhabitants of village Ninga Pani Nariyola, to direct respondent No.4, to perform her duties in the aforesaid school which was marked by the Minister Education Schools to respondent No.1, however, no action was taken by the later against the said private respondent with mala fide intention. It is further stated that under political pressure respondent No.1 issued in back date the impugned order dated 15-5-2012, with regard to shifting of school in violation of law. It is claimed that school consisting of 54 students is facing misery due to failure to perform functions by respondents Nos.1 to 4, hence, the petitioners constrained to file the instant constitutional petition.
3. After admission of writ petition the respondents were directed to file written statement, documents and affidavit vide order dated 20-5-2013. The private respondent No.4 despite service failed to appear before Court, therefore, was proceeded ex parte vide order dated 19-12-2013. The official respondents Nos.1 to 3, however, were allowed to file written statement on the basis of order dated 26-12-2013. It is stated by official respondents that petitioners have got no locus standi to file the instant writ petition. It is averred that comments of District Education Officer (Female) Bagh, be treated as part of written statement. It is stated in the comments that Assistant Education Officer (Female) North Bagh, inspected the disputed school and filed a report for shifting of the same. It is stated that 500 feet away a boys primary school is also functioning where strength of students is about 60. It is maintained in comments that public at large asked to shift the school in another place of the same village Kals Ninga Pani, hence, the school was shifted where more than 50 students are studying and two teachers are also performing their duties.
4. Mr. Sajid Hussain Abbasi, the learned counsel for petitioners while reiterating the grounds of writ petition submitted that admittedly Girls Primary School was constructed in village Ninga Pani Nariyola in the year 1976, by the Government which was destroyed in devastated earthquake of 2005, however, an N.G.O. provided a shelter where the same is continuously functioning, however, private respondent No.4 failed to perform her duties in the aforesaid school. The learned counsel emphasized that there are as many as 54 students who are studying in the school and inhabitants of village Ninga Pani Nariyola, due to failure of private respondent No.4 to perform her duties, hired the services of a private teacher who is being paid by the people of the locality. The learned counsel submitted that despite repeated orders of Minister Education Schools, private respondent No.4 failed to join her duties in the school in question. He maintained that even in this regard petitioners moved an application to Parliamentary Secretary for Education and necessary order was issued by the said Secretary as well on 19-6-2012, which was not acted upon by the respondents for mala fide reasons. He while referring another application moved by petitioners to Minister Education Schools on 12-2-2012, submitted that District Education Officer (Female) Bagh, was directed to stop salary of the teachers who failed to perform their duties, with further direction to suspend them, however, needful was not done by the concerned District Education Officer. The learned counsel emphasized that another application was also moved to the concerned M.L.A./Minister Health, by the petitioners, however, District Education Officer, failed to act upon even upon order of the concerned M.L.A./Minister Health. The learned counsel pressed into service that impugned order dated 15-5-2012, issued by District Education Officer (Female) Bagh, was passed by violating sub-rule (3) of Rule 13 of the Azad Jammu and Kashmir Rules of Business, 1985 and submitted for acceptance of writ petition.
5. The learned Additional Advocate General appeared on behalf of official respondents on 18-6-2014 and submitted that regarding order dated 15-5-2012, another writ petition is also sub judice, hence, solicited time to produce copy of the said writ petition, however, later on, neither any copy was produced nor any one appeared on behalf of the said respondents, therefore, they were proceeded ex parte vide order dated 2-9-2014.
6. After hearing the learned counsel for petitioners, I have perused the contents of writ petition and examined the appended record with utmost care. The petitioners specifically pleaded in paragraph 2 of writ petition that Government had constructed disputed school in village "Ninga Pani Nariyola" of District Bagh in the year 1976, which was destroyed in devastated earthquake of 2005, where a new shelter was established by an N.G.O. The aforesaid para 2 of writ petition has been admitted by District Education Office, (Female) Bagh, in parawise comments dated 1-1-2013, appended along with written statement of the official respondents. As per report of Tehsildar Bagh dated 3-2-2012, land comprising Survey No.1656 measuring 64 kanals, 18 marlas situated in village Ninga Pani Nariyola is shamilat deh land, where building of Girls Primary School Ninga Pani Nariyola was constructed which was destroyed in earthquake and now a shelter is available there. As per report, supra, males and females students are studying in the aforesaid school. According to the report 5 kanals land is under occupation of Girls Primary School Ninga Pani Nariyola. It appears from record that petitioner No.1 along with one Jannat Hussain Khan, member S.M.C. Ninga Pani Nariyola, moved an application to Minister Education Schools, stating therein that since more than three months the concerned teachers who were teaching in the aforesaid school were not available, hence, private teachers were hired by the inhabitants of the locality. The District Education Officer (Female) Bagh, was directed to resolve controversy vide order dated 12-2-2012. Another application was moved by petitioner No.1 through Jannat Hussain Khan, member S.M.C. Ninga Pani Nariyola, to Parliamentary Secretary for Education of Azad Jammu and Kashmir. A perusal of the same reveals that District Education Officer (Female) Bagh, was directed to ask the concerned teachers to appear and perform their duties otherwise they should be suspended and proceeded in accordance with taw vide order dated 19-6-2012. Another application was moved by petitioner No.1 and another to Minister Education Schools, for the same purpose. The Minister Education Schools, again directed to District Education Officer-respondent, to suspend both the teachers who failed to perform their duties in Government Girls Primary School Ninga Pani Nariyola and also directed to stop their salaries vide order dated 12-2-2012. It appears from record that petitioner No.1 along with 51 other persons, ultimately preferred an application to the concerned M.L.A./Minister Health, stating therein for issuance of necessary direction to continue the school in the same place. The concerned M.L.A./Minister Health also directed to District Education Officer (Female) Bagh, to apprise him vide order dated 19-5-2012, however, needful was not done. The aforesaid documents were not controverted by respondents through written statement. As Government Primary School was established in village "Ninga Pani Nariyola" of District Bagh, since 1976, hence, according to Govt. notification dated 27-5-1984, the same could not be shifted in any other place by the official respondents. The aforesaid notification is reproduced as under:---
As per notification supra a Site Selection Committee consisting of (1) Deputy Commissioner concerned, as Chairman (ii) X.E.N. (Buildings) of district and representative of the concerned department as members; has been constituted by the Government. On the basis of the above notification after obtaining recommendations of Site Selection Committee, the land could be acquired for construction of school in any other place. However, District Education Officer (Female) Bagh, violated the aforesaid notification, repeated orders of Minister Education Schools, concerned M.L.A./Minister Health and Parliamentary Secretary, hence, the said respondent is warned to be careful about compliance of lawful orders of superior officers and high-ups in future otherwise law will take its own course.
7. The petitioners have proved through pleadings and record that Government Girls Primary School "Ninga Pani Nariyola" of District Bagh was constructed by the Government. An institution which was established by the Government could not be shifted from village "Ninga Pani Nariyola" to another place of even same village "Kalse Ninga Pani", through the impugned order dated 15-5-2012. The order, therefore, passed by respondent No.1 is coram-non-judice which does not create any right and such like order must be struck down. An identical point was arisen before the apex Court in case titled Muhammad Rashid v. Azad Jammu and Kashmir Government and 20 others [PLD 1987 SC (AJ&K) 60], wherein at page 64 of the report, it was held as follows:---
"13. There is no gainsaying that the rule embodied in the maxim "audi alteram parterm" is well-entrenched in our system of law but for earning a right of hearing, a person must show that he was deprive of some right vested in him. It is well settled that a void order or an order without jurisdiction (as is one before us) does not create any vested right. The so-called Government order allowing lease to the appellant is a void order not capable to confer any right on the appellant to entitle him to claim hearing."
The aforesaid view was reiterated by the apex Court in case titled Azad Government and 3 others v. Abdul Ghaffar Butt and 2 others (2000 SCR 250). At page 254 of the precedent case, it was opined as under:---
"9. The contention of the learned counsel for the appellants that even if the allotment in favour of the appellants is void, that should have been challenged by the respondent before the appropriate authority otherwise it cannot be ignored, does not help his case. Because it was the appellants who filed the writ petition in the High Court and it has been repeatedly held by this Court that a person who seeks relief by invoking writ jurisdiction must come with clean hands; if a person bases his claim on a void order, he is not entitled to any relief in exercise of writ jurisdiction."
The same point came under consideration before the Lahore High Court, in case titled Mst. Kanza v. Judge Family Court, Lahore and another [2003 YLR 2356]. At page 2359 of the report it was held as under:---
".... It has been held in the case cited as National Bank of Pakistan v. Khairpur Textile Mills Limited 2001 CLC 1187 that clear distinction exists between illegal and void orders and illegal orders must be set aside through appropriate proceedings before proper forum presented within time stipulated by statute of limitation while a void order can be ignored."
8. The petitioners have also moved an application under Order I, rule 8 of Civil Procedure Code, with request that they may be permitted to contest the case in public interest. The other side has not filed objections, hence, the aforesaid application is allowed.
9. The crux of above discussion is that by accepting the instant writ petition the impugned order bearing No.3041 dated 15-5-2012, issued by District Education Officer (Female) Bagh, respondent No.1, is quashed, as without lawful authority, hence, having no legal effect. The aforesaid respondent is directed to take all necessary steps for functioning of the school in previous place. The private respondent No.4 is directed to resume her duties immediately in Government Girls Primary School Ninga Pani Nariyola, forthwith failing which Secretary Education Schools, respondent No.3, shall take necessary disciplinary proceedings against respondents Nos.1 and 4 respectively. The office is directed to transmit an attested copy of the instant judgment to respondents Nos.1 and 3 for compliance. The writ petition is accepted in the manner as indicated herein above with no order as to the costs.
SA/68/HC(AJ&K) Order accordingly.