MUHAMMAD ZUBAIR vs THE COMMISSIONER, LAHORE DIVISION and others
This matter arises from a petition for leave to appeal concerning the promotion to the post of Assistant Superintendent Vaccination in Zila Council Kasur. The core legal question was whether the West Pakistan Health Department Vaccination Subordinate Services Rules, 1968 or the West Pakistan Local Councils and Municipal Committees Services Rules, 1963 governed the parties. Counsel for both parties conceded that the 1968 Rules had not been adopted by the concerned Zilla Council, rendering the 1963 Rules applicable. However, the Supreme Court found an unresolved factual controversy regarding whether the appointment constituted a promotion from a lower to a higher grade or a transfer between classes in the same grade. The Court held that the material on record was insufficient to determine this factual issue. Consequently, the Supreme Court accepted the appeal, set aside the judgments of the High Court and the Commissioner, and remanded the case to the Commissioner for a fresh decision in accordance with the applicable law. The key principle laid down is that unadopted subordinate rules do not govern local council service matters, and unresolved factual controversies regarding promotions necessitate a remand to the competent authority.
- Do the West Pakistan Health Department Vaccination Subordinate Services Rules, 1968 govern employees of a Zilla Council without formal adoption?
- What is the proper course of action when the record lacks sufficient material to resolve a factual controversy regarding promotion versus transfer?
- Whether the Commissioner as an appellate authority correctly applied the 1968 Rules instead of the 1963 Rules?
- West Pakistan Health Department Vaccination Subordinate Services Rules, 1968
- West Pakistan Local Councils and Municipal Committees Services Rules, 1963
' SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the West Pakistan Health Department Vaccination Subordinate Services Rules, 1968 (hereinafter referred to as the 1968 Rules) govern the case of the parties or the West Pakistan Local Councils and Municipal Committees Services Rules, 1963 (hereinafter referred to as the 1963 Rules).
2. The post of Assistant Superintendent Vaccination fell vacant in Zila Council Kasur. The Chairman, who was the competent authority, promoted Muhammad Zubair appellant on that post.
Muhammad Bashir respondent No,3, challenged the promotion. The Commissioner Lahore Division as the appellate authority applied rule 6 sub-rule (5) of 1968 Rules and allowed the appeal setting aside the promotion of the appellant. A Constitution Petition was then filed by the appellant which failed.
3. It is conceded by the learned counsel for both the parties that the Rules of 1968 are not shown to have been adopted by the Zilla Council concerned and, therefore, the case of promotion had to be adjudicated upon under 1963 Rules. After such an admission in the ordinary course it would have been possible for us to decide the matter ourselves by reference to the Rules but we are confronted with a factual controversy which we find it not possible to resolve with the material on record before us. The factual controversy is whether it was a case of promotion from Grade-5 to Grade-8 post or a transfer from one class to another. The contention of the appellant is that while he is in Grade-8 the promotion post is also in Grade-8, and belongs to a different class, and under the Rules, the promotion is to be made from the lower grade to the higher grade or from one class to another. The contention on the other side is that the promotion post is in Grade-8 that the appellant was already in Grade-8 and it was not a case of promotion but of transfer from one post to the other, in the same grade but in a different class. The respondent being in lower grade was alone to be considered under the Rules of 1963 for promotion to the post. We find that the material on record is not sufficient to dispose of this controversy and consequently while accepting the appeal, setting aside the judgment of the High Court and that of the Commissioner, remand the case to the Commissioner for decision afresh in accordance with the law applicable. No order as to costs.