SULTAN AHMAD AKHTAR Versus GOVERNMENT OF PUNJAB
This judgment shall dispose of Writ Petition No. 6589 of 1989 and 6590 of 1989 involving identical questions of law and facts wherein challenge has been made to the appointment of Muhammad Ashraf Chowdhry, Chief Corporation Officer, Municipal Cooperation, Faisalabad, respondent No. 4 herein, in both the writ petitions.
2. The facts, in brief, are that the aforesaid respondent was holding the post of Administrator, General Bus Stand, Faisalabad, under the employment of the Faisalabad Development Authority. The Government of Punjab in exercise of powers vesting in it under Rule 2(ii) of the West Pakistan Servants of Local Councils and Municipal Committees (Prescribed Authority and Terms and Conditions) Rules, 1965, accorded sanction to the appointment of Mr. Muhammad Ashraf Choudhry, respondent No. 4, as Administrator, General Bus Stand in Grade‑17 against the newly‑created post with effect from 4‑6‑1983 in Municipal Corporation, Faisalabad, on his transfer from the Faisalabad Development Authority, after the transfer of General Bus Stand from Faisalabad Development Authority to Faisalabad Municipal Corporation, vide Government of Punjab, Local Government and Rural Development Department Memorandum No. SO.VII‑15‑57/79‑PT‑II, dated 14‑9‑1983. Under the terms and conditions of his appointment, he was liable to be transferred against an equivalent post within the Faisalabad Municipal Corporation as and when required in the public interest.
3. On 21‑10‑1988 Mr. Muhammad Imtiaz Kazmi retired as Chief Corporation Officer, Faisalabad Municipal Corporation in BPS‑19. On 22‑10‑1988 vide Resolution No. 1137, the Faisalabad Municipal Corporation sanctioned the promotion of respondent No. 4 in Grade‑18 and transferred him as Chief Corporation Officer against the vacant post vide formal order of even date passed by the Mayor, Faisalabad Municipal Corporation. A reference was also made to the Government of the Punjab, Local Government and Rural Development Department, for according approval to the appointment of respondent No. 4 as Chief Corporation Officer in BPS‑18. The proposal was however, not accepted, but the petitioner was allowed to continue holding the post till further orders vide Memo. No. SO.VII‑15‑57/79‑I1, dated 31‑10‑1988. The relevant excerpt reads as under:‑‑
"It is regretted that your proposal cannot be acceded to as the post of Chief Corporation Officer, Faisalabad is in BPS‑19 and it is required to be filled in by promotion on the basis of selection on merit amongst the officers of the Grade‑18 of the Administrative Functional Unit of the Local Council Service. However, temporary Local arrangement may continue till further orders."
4. The Mayor, Municipal Corporation, Faisalabad, wrote a letter to the Chief Minister for regularisation of service of respondent No. 4 as Chief Corporation Officer in the Municipal Corporation, Faisalabad. The Local Government and Rural Development Department, on a summary submitted to the Chief Minister, opposed the proposal. However, the Chief Minister on the material placed before him, issued direction for regularising the service of respondent No. 4 in the Administrative Functional Unit of Local Councils Service in BS‑18 with effect from 22‑10‑1988 as Chief Corporation Officer, Municipal Corporation, Faisalabad. Pursuant to the Chief Minister's directive, the Chairman, Punjab Local Government Board/Secretary, Local Government and Rural Development Department, issued formal order bearing No. LCS (Admn.)‑1(66)/89, dated 9‑10‑1989 accordingly. Prior to that the Minister for Local Government and Rural Development, Punjab, vide D.O. No. PS/MLG/O/89, dated 11‑5‑1989 also issued directions that the post of Chief Corporation Officer, Faisalabad Municipal Corporation, Faisalabad, may be excluded from the Administrative Functional Unit of LCS on adjustment of respondent as Chief Corporation Officer in NPS‑18. Consequently, the matter was considered by the Punjab Local Government Board in its meeting held on 12‑11‑1989 and the following decision was taken:‑‑
"The regularisation of the services of Mr. Muhammad Ashraf Chaudhry, Chief Corporation Officer, Municipal Corporation, Faisalabad, appointed in pursuance of Chief Minister's Directive in relaxation of rules and procedure, in B.S. 18 in the Administrative Functional Unit of Local Councils Service is hereby approved with effect from 22‑10‑1988."
5. The grievance of the petitioner is that respondent No. 4 does not belong to Local Council Service and, therefore, could not be inducted in it either by transfer or by promotion by the Provincial Government. It is argued that the Chief Corporation Officers arc appointed by promotion from amongst the six-senior‑most members of the "Functional Unit" in Grade‑17 and neither the Provincial Government nor the Municipal Corporation, Faisalabad, are competent to make the impugned appointment in departure of the relevant rules. It is further argued that the impugned appointment is not covered by rule 23 of the Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983 (hereinafter called the rules).
6. Mr. Aamer Raja A. Khan, learned counsel for respondent No. 4, argued that the post of Chief Corporation Officer was excluded from the Administrative Functional Unit by the competent authority. The Chief Minister approved the regularisation of the service of respondent and, therefore, his appointment does not suffer from any legal flaw and is covered by rule 23 of the rules. Mr. Farooq Bedar, the learned Additional Advocate General, reiterated the submissions made by Mr. Aamer Raza A. Khan. He also argued that respondent No. 4 has since been confirmed in the Local Service since 1988 and both the petitioners have also been promoted in Grade‑18 during the pendency of the writ petition, it is, therefore, not a fit case to issue the writ.
7. Ch. Mushtaq Masood, learned counsel for the petitioners, submitted in rebuttal that rule 23 was not attracted in the instant case, in that, it was intended for the benefit of the persons already in the service of Local Council and not for the benefit of outsiders. He also strongly relied on the case of Muhammad lqbal Khokhar and three others v. Government of Punjab and 2 others (PLD 1991 SC 35), to contend that powers of relaxation by the competent authority should be exercised justly, fairly and not whimsically.
8. The controversy raised herein needs examination in the light of the relevant provisions of the rules, which may be quoted with advantage:‑‑
"6. Appointment by promotion or transfer .‑‑‑(1) A member of the service shall be eligible for promotion to a post for the time being reserved for promotion in any higher grade of service in the functional unit to which he belongs if he possesses such qualifications and experience as arc laid down for the post in the Schedule; provided that promotion in the case of a selection post shall be made on the bass of selection on merit while in the case of a non‑selection post, on the basis of seniority‑cum‑fitness:"'
(2) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
(3) Promotion including pro forma promotion shall be claimed as of right.
(4) Appointments by transfer may be made from amongst persons holding appointments in the Government if the person fulfils the conditions of appointment to the post to which he is transferred and satisfies such other conditions as may be laid down by the Board in this respect; provided that the said person holds an appointment in Government on regular basis in the same grade as that of the post to which appointment is proposed to be made.
23. Relaxation .‑‑‑Any of these Rules may for reasons to be recorded in writing and in consultation with the Board, be relaxed by Government in an individual case, if Government is satisfied that strict application thereof would cause undue hardship to the individual concerned."
9. Having gone through the rules and the material placed on record, it is established that the appointment of respondent No. 4 was made in BS‑18 in Administrative Functional Unit of Local Councils Service in relaxation of rules and procedure, which was approved by the Chief Minister vide order of the Punjab Government dated 12‑11‑1989, in exercise of the powers conferred upon him under Rule 23. Needless to say that the Mayor, Municipal Corporation, Faisalabad, wrote a D.O. letter to the Chief Minister (a copy of which is Annexure P/3 to the writ petition), wherein it was inter alia stated that, "keeping in view the efficiency and satisfactory performance and in accordance with the Resolutions/recommendations of the House of the Corporation unanimously resolved in its meetings dated 22‑10‑1988 and 14‑12‑1988, induction of the officer m the LCS service may please be approved to relaxation of the rules and regulations, if any, to safeguard the service interest of the officer". On the basis of this letter, the Chief Minister, vide Chief Minister's Secretariat, Punjab, Memorandum No. US‑IV‑CMS/OT‑69‑22273, approved the regularisation of service of respondent No. 4 and, in consequence whereof, the Chairman, Punjab Local Government Board/Secretary, Local Government and Rural Development Department, issued formal letter of appointment for regularising the service of respondent No. 4 on 9‑10‑1989 and the Punjab Local Government Board, in its meeting held on 12‑11‑1989, also approved his appointment after conscious application of mind. It, therefore, cannot be said that the Chief Minister used his discretionary power arbitrarily to reward respondent No. 4 for extraneous consideration or to grant him undue privilege over the rights of other persons or the petitioners. The impugned order does not by itself prejudicially affect the petitioners. It is not in violation of law but in relaxation of rules, which was within the competence of the Government. Furthermore, during the pendency of the writ petitions, Sultan Ahmad Akhtar, petitioner was promoted in BS‑18 on 13‑1‑1990 while Muhammad Safdar Khan, petitioner was also promoted in BS‑18 on 13‑i‑1990 and, therefore, no injustice has been caused to them. This is, therefore not a fit case for the exercise of my discretionary Constitutional jurisdiction.
In view of the foregoing discussion, both the writ petitions are hereby dismissed but there shall be no order as to costs.
AA./S‑319/L Petitions dismissed.