GHULAM DASTGIR AND 6 Other vs THE COMMISSIONER, LAHORE DIVISION, LAHORE AND 5 Other

SHAMEEM HUSSAIN KADRI, J.-Collector, Lahore, by his order dated 27th August 1968, selected 11 Patwaris as Kanungo can--didates, including the present petitioners before us. Respondents 2 to 5 went up in appeal before the Commissioner who set aside the order of selection on 27th November 1968 and directed the Collector to make selection on the basis of seniority-cum-fitness the order of the Commissioner was challenged before Member, Board of Revenue by a petition described as appeal, revision or representation, who, it is alleged, refused to give hearing in support of their claim. Hence the petitioners have approached this Court under Article 98 of the abrogated Constitution of 1962.

2. The petitioners' case was that the Commissioner was not competent to set aside the selection made by the Collector. The order was passed without impleading at least three petitioners, namely, Ghulam Dastgir, Abdul Basit and Abdul Karim and it thus infringed the maxim audi alteram partem.

The learned Commissioner did not consider the merits of the individual case. He introduced a new method of selection by proposing channel of seniority-cum-fitness, which is not provided by the West Pakistan Kanungo Service (Northern Zone) Rules, 1964.

3. During the arguments learned counsel for respondents 1 and 6 Mr. Irshad Hassan produced before us a communication addressed to him by the Deputy Secretary, Board of Revenue expressing willingness of the Member, Board of Revenue to grant hearing to the petitioners in the disposal of their case before him on the executive side, which has been placed on the record.

4. The Government of West Pakistan by its notification dated 18th of November 1964, framed West Pakistan Kanuago Service (Northern Zone) Rules, 1964, hereinafter called the Rules, under Articles 178 and 179 of the Constitution. Rule 4 confers authority for making selection of posts of Kanungo on the Collector in charge of the district. In these rules no appeal or revision is provided against the selection made. In fact the Commissioner in his order admitted that no appeal was com--petent, but he chose to interfere assuming his supervisory control and treating the appeal as a representation. Reliance was placed by learned counsel for the respondents on sections 13 and 19 of the West Pakistan Land Revenue Act, 1967, to substantiate the stand of the Commissioner. It was argued with vehemence that the Collector in the performance of his duty, as the Revenue officer, has made the selection and, therefore, he was under the administrative control of the Commissioner. There is, however, a clear fallacy in the submission made, for, in section 19 of the West Pakistan Land Revenue Act, 1967 the official acts of the Revenue Officers have been made subservient to the Cam control and direction of the superior officers only when there is no Lab.

Express provision of law to the contrary. Reliance was placed on the Province of East Pakistan and others v. M. Amir Hussain (PLD 1963 SC 185) in support of this contention. The authority cited above is clearly distinguishable because the order of compulsory retirement in that case was made by the Provincial Government and not by any public functionary in the hierarchy of the department of Public Instruction. Rules framed by the Governor of the Province under his Constitutional responsibility determine the terms and conditions of the employees in the Province. Govern--ment being the source of power can interfere in any case by relaxing the rules; such authority, however, does not vest in any other person. Neither the Commissioner nor the Member, Board of Revenue enjoys that status of the Provincial Government. The rules framed by the Provincial Government confer the authority of selection on the Collector in the district. That -public functionary, therefore, alone is competent to perform that Function. No other officer, howhighsoever in status he might be, could assume power of interference with the order made by the competent authority unless he is clothed with such an authority by law. Appeal is a statutory right which has to be provided by an Act or the Rules. In the absence of any such provision the order of the Commissioner cannot be termed as one clothed with authority. Province of West Pakistan v. Syed Shabbir .Ian and another (PLD 1968 Lah. 1194) is referred. We are, therefore, persuaded to hold that the selection made by the Collector was the performance of a Constitutional obligation conferred on him and in that capacity he cannot be considered to be subservient to the wishes of the Divisional Commissioner and he cannot introduce a fresh method of selection, namely, seniority-cum-fitness '"not provided by the Rules".

5. It was vehemently argued by learned counsel appearing on behalf of the Member, Board of Revenue that the petitioners are precluded to invoke the jurisdiction of this Court under Article 98 of the Constitution especially when the Authority has conceded to grant them the right of hearing in the representa--petition made by them, since the Board enjoys powers of super--intendence and control on all its Revenue officers under section 4 of the West Pakistan Board of Revenue Act, 1957.

On behalf of the petitioners it was contended that it would be a futile exercise to go to the person who has already expressed his opinion on the merits of the case in the written statement filed by him 19 in this Court. We are persuaded to the latter view canvassed before us. In Mian Muhammad Nurullah and 2 others v. District Magistrate, Lahore and others (1970 SCMR 214) their Lordships of the Supreme Court directed the District Magistrate to dispose of the objections of the interested parties in the grant of No-Objection Certificate for the construction of a cinema house despite there being the right of appeal to the Provincial Government under proviso to sub-rule (3) of rule 5, Part II of the West Pakistan Cinematograph Rules, 1962. With respect we would follow the dictum of their Lordships in the instant case.

6. Half-hearted attempt was made to show that all the parties were present before the Commissioner when the order was made. But from the memos. Of appeals before the Commissioner it is abundantly clear that three of the petitioners were not impleaded and, therefore, it cannot be presumed that they were present before the Commissioner when the order was made. The order is violative of the principle of natural justice wherein the petitioners were condemned unheard. We would not like to go into the merits of the case in view of the Supreme Court judgment in re : Mean Mohammad Nurullah and 2 others v. The District Magistrate, Lahore and others. It is for the Collector to deal with the complaint of the respondents, if any.

7. For the foregoing reasons we accept this writ petition and declare the order passed by the Commissioner as one without lawful authority and of no legal effect. Parties, however, shall bear their own costs.

K. B. A.

Petition accepted