MUHAMMAD ASLAM Versus DEPUTY COMMISSIONER, KHUSHAB
1. Petitioner through this Constitutional petition has assailed the order dated 17‑9‑1990 of the Deputy Commissioner, Khushab, whereby he set at naught the order of the Chairman, Municipal Committee, Khushab, passed on 16‑6‑1990 promoting the petitioner to the post of Octroi Superintendent in pursuance to Resolution No. 355 of the Municipal Committee.
2. Since the case has been argued at length as such it is decided as a notice case.
3. Facts in brief are that on the retirement of one Atta Muhammad, the post of Octroi Superintendent fell vacant in the Municipal 'Committee, Khushab. A unanimous resolution No. 355 was passed by the Municipal Committee for the appointment of the petitioner to the post of Octroi Superintendent. Subsequent to the passage of the resolution, the Chairman promoted the petitioner on 16‑6‑1990. Thereupon Ali Ahmad Khan respondent No. 3 and Khurshid Ahmad respondent No. 4 challenged this promotion by filing their respective appeals before the Deputy Commissioner, Khushab, who vide his order dated 17‑9‑1990 accepted the appeals and set aside the impugned order of promotion and remitted the case for its decision afresh.
4. It is argued by the learned counsel for the petitioner that the order impugned is coram non judice as the appeal before the Deputy Commissioner was not competent. In support of his assertion he has relied upon Muhammad Akram v. Abdul Ghafoor etc. (1980 SCMR 511) and also an unreported judgment rendered in Writ Petition No. 10‑S/88 "Muhammad Ismail v. Ghulam Ali etc." A further argument has been advanced that respondent No. 4 Khurshid Ahmad being non‑matriculate is not eligible for his promotion to the post of Octroi Superintendent. To substantiate the contention he referred to rule 21 of the West Pakistan Municipal Committee Octroi Rules, 1964 wherein it has been provided/laid down that no person can be appointed as an Octroi Superintendent unless he is graduate or is a matriculate with at least 10 years service at his credit. The only exception laid down by the aforesaid rule is that any person already in the octroi service of the Municipal Committee, who does not possess the prescribed qualification may also be promoted one step above the position held by him. Khurshid Ahmad respondent being under‑Matric had already got one step promotion when he was promoted from the post of Octroi Clerk to that of Octroi Inspector. Consequently, he is not eligible for the post of Octroi Superintendent.
5. Learned counsel appearing for the respondent No. 4 has supported the impugned order arguing that the appeal before the Deputy Commissioner is competent in view of insertion of rule 13‑A in the West Pakistan Municipal Committee Service Rules, 1969 which has provided a right of appeal to the members of the service. However, Ali Ahmad Khan, respondent No. 3. who is preset in Court, does not press this Constitutional petition.
6. I have considered the contentions. Since I am disposing of this petition only on the question of maintainability as such I do not want to dilate upon the other issues argued by the learned counsel appearing for the respective parties. Section 166 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the "Ordinance") provides that:‑
7. "Any person aggrieved by any order passed by a local counsel or its Chairman (or its Vice‑Chairman or Officer) in pursuance of the Ordinance or the rules or bye‑laws, may appeal to such authority, in such manner and within such period as may be prescribed."
8. The prescribed rules for filing of appeals are called Punjab Local Councils (Appeal) Rules, 1980 framed under sections 166 and 167 of the Ordinance. Rule 1(3) provides as under:
9. "They shall apply to all appeals preferred against orders passed under the Punjab Local Government Ordinance, 1979 and the rules or bye?laws framed there-under except appeals by servants of Local Councils in matters relating to their service."
10. Its reading makes it very clear that these rules are not applicable to the servants of the local councils in matters relating to their service. The reference is also made to Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981. Rule 17 thereof has provided as under:
11. "17. A servant of a local council on whom a penalty has been imposed under these rules, may within 30 days of the communication of the order, appeal to the authorities given below:
(i) (Director, Local Government and Rural Development of the Division) in case of a servant of a Municipal Corporation or a Zila Council.
(ii) (Assistant Director, Local Government and Rural Development of the District) in case of servant of a Municipal Committee or Town Committee:
12. Provided that the appellate authority, in the case of a servant in NPS‑18 and above or in the case of a servant to whom a penalty has been imposed by an officer appointed under sub‑rule (4) of Rule 2, shall be Government. In case penalty has been imposed by Government, no appeal shall lie and instead a review petition shall lie to Government:
13. Provided further that if the appellate authority is satisfied that there is sufficient ground for extending the time it may entertain the appeal at any time." '
14. The reading of it shows that appeal under the aforesaid rule has only been provided against disciplinary actions taken against the servants of the local councils. The Punjab Municipal Committees Service Rules, 1969 have laid down the method of recruitment and certain other term's and conditions of its employees. However, no appeal was even provided in these rules to the local servants. The Governor of Punjab in exercise of his powers conferred on him under section 167 of the Punjab Local Government Ordinance, 1979 has added rule 13‑A to the Punjab Municipal Committees Service Rule, 1969 on 25th of July; 1990 which provides as under:
15. "Rule 13‑A. Right of Anneal .‑‑‑(i) A member of the service aggrieved by an order passed against him under these rules, shall have a right to file an appeal to the Commissioner concerned in case of Corporation and the Deputy Commissioner concerned in case of Municipal Committee/Town Committee within sixty days against the order passed by the Corporation/Municipal Committee/Town Committee, its Mayor/Chairman or any other officer of the Corporation/ Municipal Committee/Town Committee.
(ii) No second appeal shall lie but a revision petition can be made to Government within 30 days from the date of appellate order whereupon Governor may pass such orders as deemed fit."
16. The aforesaid resume demonstrates that right of appeal to the aggrieved members of the service has been provided through the notification issued on 25‑7‑1990. It is well‑settled law that right of appeal being a substantive right cannot have retrospective effect. It is also an established law that a notification is to operate from the date of its promulgation unless it has been expressly or by necessary intendment made to take effect retrospectively. Reliance is placed upon The Burmah Oil Company Limited v. The Trustees for the Port of Chittagong (PLD 1961 SC 452) and Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another (PLD 1964 SC 494). Learned counsel for the respondent has not pointed out any law or rules except the newly‑inserted rule 13‑A in the West Pakistan Municipal Committees Service Rules, 1969, which permitted an appeal to the Deputy Commission against orders passed by the Chairman, Municipal Committee. The right of appeal was not available at the time when the impugned order of promotion was made, as such the same would not be attracted to the facts of the present case. The Deputy Commissioner, Khushab, was not competent to hear the impugned appeal, as such, the writ petition is accepted and the impugned order passed by him on 17‑9‑1990 is declared to have been passed without lawful authority and of no legal effect. The respondent may be at liberty to avail the other remedy provided to him under the law. In the circumstances, there shall be no order as to costs.
17. H.B.T./M‑792/L ????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.