MUNAWAR SULTANA vs DIRECTOR OF EDUCATION

1. ' Munawar Sultana daughter of Muhammad Bashir, applied for the post of PTC Teacher and after undergoing test/interview was appointed as such, by means of order, dated 16-2-1997 (Annex "A").

She took over the charge in Government Primary School Bhatta Ameen Akuka, Bahawalnagar on 18-2-1997 (Annexure A/II). Her services were however, terminated vide order, dated 4-3-1997 (Annex "C") allegedly in pursuance of the direction issued by the Director of Education (EE), Bahawalnagar on 3-3-1997. The appellant represented against this illegal order which failed to fructify.

2. The appellant has filed this appeal challenging the termination mainly on the grounds that she was duly appointed by the competent authority; her order of appointment having been acted upon, a valuable right had accrued in her favour; that she had been condemned unheard and order was thus coram non judice.

3. The respondents have refuted the claim of the appellant defending the impugned order on the ground that the appellant was a 3rd Divisioner in Matric and as such, her services had rightly been terminated in pursuance of the order of Director of Education (EE), Bahawalnagar.

4. It was contended by the learned counsel for the appellant that the impugned order had been passed without hearing the appellant, as such, it offended against the universally acknowledged principle of natural justice embodied in the maxim: Audi alteram partem.

5. Learned District Attorney, on the other hand, argued that the impugned order was well considered and no notice was required to be issued to the appellant in the peculiar circumstances.

6. The impugned order is visibly stigmatic. It required a notice to the appellant requiring her to explain as to why her services be not terminated on the ground that she was Third Divisioner Matriculate. This principle is now being regarded so much fundamental that superior Courts have held that this shall be read as a part of the Statute, even if it is not in the enactment, reference in this behalf may be made to:-

(i) 1999 SCM R 2203.

(ii) 1999 SCM R 2774. Pa.

(iii) PLD 1959 SC (Pak.) 45.

(iv) PLD 1965 SC 90, and

(v) 1972 SCM R 13.

' This is not merely a principle of mundane law but finds important position in Islamic Jurisprudence. Holy Qur'an mentions the incident of inspection by Solman (Hazrat Suleman) of his organization of Birds. Qur'an says:-- "And he took a muster of Birds, and he said 'why is it I see not the Hoopoe? Or is he among the absentees? I will certainly punish him with a severe penalty, or execute him unless he brings me a clear reason (for absence)." 27:22 ' Again we find in Hadith: {{ARABIC TEXT}} "When you are requried to judge between two (contenders) don't decide unless you hear the other side."

7. It is thus obvious that education authorities proceeded absolutely contrary to the accepted legal norms in the case.

8. It is also noteworthy here that impugned order was passed by the Deputy District Education Officer (W) who did not apply her own mind to the case but acted under the direction of the Director of Education, Bahawalpur. As such the impugned termination order is not the outcome of the independent judicious exercise of the authority of the Dy. D.E.O.

9. The learned counsel for the appellant has also relied upon the Circular of the Education Department, dated 12-6-1999 whereby the Chief Minister was pleased to approve the proposal of the department regarding droppage of proceedings against the teachers on account of being overaged and those possessing certificate of Third Division Matric.

10. In this view of the mater the impugned order, which was passed at the back of the appellant is set aside, the appeal is accepted and the appellant is reinstated in service. Since she had not performed the duties during the interregnum, she shall not be entitled to the salary for the intervening period.

11. The department shall however, be at liberty to proceed against the appellant afresh of course, strictly in accordance with law. There shall be no order as to costs.