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Petitioner: MAQBOOL HUSSAIN ASIF VS Respondent: SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENTHonorable Justice Maulvi Anwarul HaqQamar-uz-Zaman Butt,Zafar Ullah Khan Khakwani
2006 P L C (C
2006 P L C (C.S.) 1238
[Lahore High Court]
Before Maulvi Anwarul Haq, J
MAQBOOL HUSSAIN ASIF and 8 others
Versus
SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and another
Writ Petitions Nos.5946, 6332, 6018 of 2004 and 216 of 2005, heard on 29th June, 2006.
Punjab Local Government Ordinance (XIII of 2001)---
----Ss. 191 & 196---Punjab Local Councils Servants (Service) Rules, 1997, R. 4(v)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion, review of---Petitioners were appointed by competent authority of erstwhile Zila Council---After promulgation of Punjab Local Government Ordinance, 2001, the petitioners were transferred to various union councils where they were promoted by Zila Nazims on the recommendation of Selection Committees---Petitioners were aggrieved of the letter/circular issued by authorities, whereby their promotions were reviewed---Plea raised by petitioners was that executive order could not override the statutory rules---Validity---Statutory rules were framed in exercise of powers conferred by statute by the competent authority and the same could not be set at naught by the executive by issuing a circular---Not even an allegation existed to the effect that any of the petitioners was not eligibly to be promoted to the post or that any right of any other servant of respective union council had been infringed---Orders issued by the authorities were declared to be without lawful authority and were set aside---Petition was allowed in circumstances.
Qamar-uz-Zaman Butt for Petitioner.
Zafar Ullah Khan Khakwani, A.A.G. for Respondent.
Jawad Shahid for Respondents No.2.
Arshad Mehmood, DDO (G) and Abdul Hamid, Assistant with records for Respondent.
Date of hearing: 29th June, 2006.
JUDGMENT
MAULVI ANWARUL HAQ, J---This judgment shall decide Writ petitions No.5946/04, 6332/04, 6018/04 and 216/05 as common questions are involved.
2. The writ petitioners in all these cases were appointed as Naib Qasids in the erstwhile Zila Council, Khanewal by the competent Authority. While they were so performing their duties, the Punjab Local Government Ordinance, 2001, was promulgated. All the writ petitioners were transferred and allocated to the various Union Councils as per details given in these writ petitions. All of them were promoted as Secretaries of the respective Union Council by the Union Nazims after being recommended by the Selection Committees. All these writ petitioners feel aggrieved of letters/orders dated 15-10-2004 and 29-10-2004 issued to the Union Nazims calling upon them to review the said promotions and to recover the emoluments paid.
3. Mr. Qamar-uz-Zaman Butt, Advocate/learned counsel for the petitioners in all these cases contends that the said impugned orders are without lawful authority inasmuch as under the Rules framed by the Provincial Government under the said Punjab Local Government Ordinance, 2001, the Union Nazim is the competent Authority in the matter of appointment and promotion to posts in BS-1 to 5 and the post of Secretary Union Council falls in the said cadre. According to him, the Executive Officer Cannot override the said statutory Rules. Learned A.A.-G. has tried to support the impugned orders. Mr. Jawad Shahid, Advocate/learned counsel for the respondent No.2 relies on a Provincial Government circular dated 5-1-2004 to urge that notwithstanding the said Rules, the matter of promotion of the employees of erstwhile Zila Councils is to be decided by District/City District Government. According to him, the letter constitutes Departmental Regulations or instructions and is at par with a statutory Rule.
4. I have given some thought to the respective contentions of the learned counsel for the parties. The facts are admitted. The petitioners-Naib Qasids were promoted as Secretaries Union Councils which post is in BPS-5. Now, admittedly, the Punjab Local Councils Servants (Service) Rules, 1997 govern the matter as amended with reference to the new set up introduced in the Punjab Local Government Ordinance, 2001. Under Rule 4(v), the appointment, promotion, suspension and punishment (including dismissal, compulsory retirement, reduction in rank and removal from service) of servants of Local Councils or servants of the Union Administration shall be made by the Union Nazim. This is subject to only one condition that the Union Nazim shall make the appointment or promotion on the recommendation of a Selection Committee specified in the said Rule 4 which comprises of the Union Nazim and the senior most Secretary of the Union Administration.
5. There is no denial that promotion of all the writ petitioners as Secretary Union Council has been made by the concerned Union Nazims on the recommendation of the said Selection Committee.
6. Now according to the said circular dated 5-1-2004 being relied upon by the learned counsel for the respondent the promotion, move over and grant of selection scale cases for the employees of erstwhile Zila Council shall be continued to be decided at the District/City District Government.
7. Now the said statutory provisions had been made by way of amendment in the Punjab Local Councils Servants (Service) Rules, 1997, by the Governor of Punjab, in exercise of powers conferred upon him under section 191 read with section 196 of the Punjab Local Government Ordinance, 2001.
8. To my mind, the said statutory Rules, framed in exercise of powers conferred by statute by the competent Authority cannot be set at naught by the executive by issuing the said circular. Even otherwise, there is not even an allegation that any of the petitioners was not eligible to be promoted to the said post or that any right of any other servant of the respective Union Council has been infringed. All these writ petitions are accordingly allowed and the impugned orders issued by the respondent No.2 are declared to be without lawful authority and are set aside. No orders as to costs.
M.H./M-455/L Petitions allowed.