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Petitioner: MUHAMMAD KHALID, ETC VS Respondent: PROVINCE OF PUNJA through Chief Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Asim Hafeez Title:MUHAMMAD KHALID, ETC vs PROVINCE OF PUNJA through Chief Secretary,
JUDGMENT
Reported As: 2020 LHC 1195 Result: Application disposed off Judgment JUDGMENT ASIM HAFEEZ, J. Through this single judgment, I propose to decide constitutional petitions, as detailed in the Appendix- A and Appendix-B, attached herewith, involving common questions of law. In brief, the petitioners have impugned transfer orders, whereby , same were repatriated to their parent local government(s), wherein they held substantive posts before being adjusted / deputed to act or perform as Secretaries Union Council(s) respectively . In some petitions, personal grievances were raised regarding alleged failures to pay / release salaries, determination whereof call for appreciation of factual details - in the wake of assertions and counter-assertions. Such factual disputes are not subject matter of adjudication, and this judgment is confined to the determination of question of legality , or otherwise, of the impugned repatriation / transfer orders, epicenter of real controversy . 2. In order to facilitate adjudication of variously filed petitions, with time lag of three years - it is appropriate to segregate them into two classes. The petitions, appearing in Appendix-A, are filed before the promulgation of The Punjab Local Government Act, 2019 (Act XIII of 2019 (referred as "PLGA, 2019") - which came into force on 04.05.2019 - and the petitions, listed in Appendix-B, are filed after the enforcement of PLGA, 2019. The petitions, in Appendix-A, impugn orders dated 31.05.2017 and 02.06.2017 - wherein petitioners therein were repatriated to respective parent local government(s) in wake of deployment plan, prepared under erstwhile Punjab Local Government Act, 2013 ("PLGA, 2013"). And the petitions, in Appendix-B, impugn order(s) dated 30.12.2019 - including the follow-up orders passed with reference to each of the petitioners - whereby petitioners were transferred / repatriated to report to the parent local government(s), upon promulgation of PLGA, 2019. 3. Briefly the facts, necessary for adjudication of the matter , are that the petitioners, as represented, were appointed as Octroi Tax Superintendent(s), Inspector(s), Naib Qasid(s) / Peon and Goods Export Tax Clerk(s) / Naib Qasid(s) etc. and tasked with the responsibilities of collection of Octroi / Goods Export Tax in terms of West
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Pakistan Municipal Committees Octroi Rules, 1964 ("Octroi Rules, 1964") and Punjab Zila Council (Export Tax) Rules, 1990 ("Export Tax Rules, 1990") respectively . On 01.07.1999 the Octroi / Goods Export tax was abolished, but respective posts / cadre of the Octroi / Goods Export Tax staff survived. Later on, the petitioners were directed to perform duties in the succeeding local governments, constituted under the erstwhile The Punjab Local Government Ordinance, 2001 (referred as "PLGO, 2001"), which repealed erstwhile The Punjab Local Government Ordinance, 1979 ("PLGO, 1979"). The rules framed under PLGO, 1979 or earlier enactments were saved in terms of sub-section (2) of section 196 of PLGO, 2001. The services of the petitioners were utilized in accordance with the mandate of section 184 of PLGO, 2001, who were, inter-alia, deputed to perform duties as Secretaries Union Council(s) and Naib Qasids, in various tiers of the successive local governmen ts. The petitioners continued to perform their duties, whose service structure, seniority list and terms of service remained separate and independent of the general cadre of regular employees of the Local Governme nt & Community Ddevelopment department ("LG&CD department"), gove rned through separate rules and terms of service. In the year 2013, the Government introduced The Punjab Local Government Act, 2013 (PLGA, 2013), and succeeding local governments were accordingly constituted. Upon preparation of the deployment plan under the framework of newly promulgated enactment; whereby the services of the petitioners were repatriated to their parent local governments, - Municipal Committees and District Councils accordingly , such orders are impugned through the petitions, listed in Appendix-A. Thereafter , during the pendency of said constitutional petitions, new enactment, i.e. PLGA, 2019, was promulgated, and succeeding local governments, comprising of five categories, i.e. Metropolitan Corporation, Municipal Corporation, Municipal Commit tee, Town Committee and Tehsil Council were established accordingly (as claimed by the respondents). Subsequently , deployment plan was prepared in terms of section 316 of PLGA, 2019, which was approved by the competent authority , and the petitioners - being the servants of the local government, called as Local Council Service in terms of section 297 of PLGA, 2019 - were repatriated to report to their parent local governments. One of the reasons, for the impugned repatriation orders, was that the Union Councils, lower tier of the local government, was abolished under the PLGA, 2019. The petitioners questioned the legality of said orders of repatriation through the petitions listed in Appendix-B. The petitioner , in W.P. No.39293 of 2016, impugn orders of repatriation dated 26.11.2016 and 30.12.2016, wherein facts are that petitioner was appointed as Water and Sanitation promoter in Zila Council, Sialkot in November , 1996, and regularized in July, 1999. The petitioner was adjusted as Sanitary Inspector (BS-06) in Tehsil Municipal Administration, Sialkot, in terms of sectio n 184 of PLGO, 2001. The petitioner , in the year 2006, was transferred / posted as Secretary Union Council Muzaffarpur and thereafter to Union Council Bhagwal-A wan, and was repatriated to District Council Sialkot, as per deployment plan, prepared under the provisions of PLGA, 2013, which order is subject-matter of adjudication hereof. No transfer order was, however , passed with respect to the petitioner after the promulgation of PLGA, 2019. 4. Learned counsels appearing for the petitioners submit that, upon abolition of Octroi / Goods Export Tax regime, services of the petitioners stood permanently absorbed, as part and parcel of Schedule of Establishment of Union Administration / Union Council, which intention was manifested from letter dated 27.06.2002. It is alleged that the petitioners were appointed as Secretaries Union Councils, who have acquired requisite training for the purposes of performance of public services, relating to registration of birth, marriage, divorce and death, and same continued to perform these services for the last 20 years, thus creating legal rights in favour of the petitioners qua incumbent positions / posts held as Secretaries Union Council. Reliance is placed on the ratio of decision in the case of "KAREEM BUX and others v. PROVINCE OF SINDH through Chief Secretary , Government of Sindh and others" (2012 PLC (C.S.) 160). Further submits, that repatriation to parent local governments otherwise implied effective exclusion of the petitioner from the service, as the posts / nomenclatures of Octroi / Goods Export Tax were already declared as dying cadre in terms of letter dated 19.04.2017, adversely affecting the prospects of service of the petitioners. Per learned counsel, there was no occasion to repatriate the petitioners to their parent local governments in the absence of establishment of new local governments, which would be established as a consequence of an election, which are not scheduled yet. Adds that defunct Union Councils are still operational, where Secretaries, some appointed in the wake of repatriation of petitioners, are still performing public services,
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hence transfer of the petitioners, in these circumstances, is discriminatory and manifestly arbitrary . Reference is made to the judgments reported as "I.A. SHAWANI and others v. GOVERNMENT OF PAKIST AN through Secretary Finance Division, Islamabad and others" (1991 SCMR 1041 ), "Dr. MOBASHIR HASSAN and others v. FEDERA TION OF PAKIST AN and others" (PLD 2010 SC 265), and "ABID HUSSAIN and 5 others v. SECRET ARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT , CIVIL SECRET ARIA T, LAHORE and 5 others" (2012 PLC (C.S.) 26). Lastly contends that orders of transfer / repatriation are contrary to the mandate of sub-sections (2) and (3) of section 316 of PLGA, 2019. The counsels representing the petitioners in similar petitions have adopted the arguments addressed and noted above. 5. Learned counsel representing the petitioner in W.P. No.39293 of 2016 adopted the submissions made, however , added that petitioner was accordingly absorbed in Tehsil Municipal Administration as Sanitary Inspector (BS-6), as evident from letter dated 09.06.2003, which absorption was given effect vide letter dated 25.07.2005. Further submits that petitioner was transferred and posted as Secretary Union Council in the year 2006 and has been working there till order of repatriation, fact evident from the service record maintained. Learned counsel, emphasized that petitioner has acquired a vested right, in wake of alleged permanent absorption, which cannot be disturbed in view of the principle of locus poenitentiae. Further submits that department has not released the salary of the petitioner since 2016, which default calls for special indulgence under the constitutional dispensation. Learned counsel referred to the judgments reported as " NASEEM UR REHMAN v. SECRET ARY, ESTABLISHMENT DIVISION, ISLAMABAD and 16 others" (2001 PLC (C.S.) 710), "SHAHID ALI and 12 others v. ADMINISTRA TOR, DISTRICT COUNCIL, LARKANA and another" (2002 PLC (C.S.) 655), "SHAH MUHAMMAD CHAUDHR Y v. CHAIRMAN, PAKIST AN STEEL MILLS CORPORA TION and 3 others" (2002 PLC (C.S.) 1541 ), "Mrs. FARKHANDA TALAT v. FEDERA TION OF PAKIST AN through Secretary Establishment Division, Islamabad and others" (2007 SCMR 886), "GHULAM RASOOL v. SECRET ARY, GOVERNMENT OF PAKIST AN, MINISTR Y OF DEFENCE and others" (2011 SCMR 994), "Kareem Bux AND OTHERS V. PROVINCE OF SINDH through Chief Secretary , Government of Sindh and others" (2012 PLC (C.S.) 160), "CONTEMPT PROCEEDINGS AGAINST CHIEF SECRET ARY, SINDH AND OTHERS" (2014 PLC (C.S.) 82), "SENA TE SECRET ARIA T through Chairman and another v. Miss FAIQA ABDUL HAYEE" (2014 SCMR 522), "SECRET ARY ESTABLISHMENT DIVISION, GOVERNMENT OF PAKIST AN, ISLAMABAD v. AFTAB AHMED and others" (2015 SCMR 1006 ) and "BABAR KHAN v. PROVINCIAL GOVERNMENT through Chief Secretary and 5 others" ( 2015 PLC (C.S.) 906 ). 6. Learned counsels for the respondent s controverted the submissions. Per learned counsel, petitioners were appointed as Octroi Clerk / Goods Export Tax Clerk - being the substantive posts - in terms of Octroi Rules, 1964, and Export Tax Rules, 1990. The Octroi / Goods Export Tax was abolished on 01.07.1999. Upon promulgation of PLGO, 2001, the petitioners were merely adjusted, for the purposes of utilizing their services, in succeeding local governments, in view of section 184 of PLGO, 2001, who were not permanently absorbed and no process of transfer by absorption ever commenced or concluded. Adds that service cadre of the petitioner was not changed or ever merged with the general cadre of regular employees of LG&CD department, both of which classes of employees are governed through separate set of rules, service structure and cadre. Further submits that the peers of the petitioners had earlier filed constitutional petitions and claimed benefit of Notifications regarding up- gradation, offered by Government, to the junior clerks - employees LG&CD depart ment -, on the premise that they were performing duties of similar nature, as performed by the junior clerks; alleged right on the claim of permanent absorption, as Secretaries Union Council, was raised and declined by the Court. Adds that upgradation was allowed but no change in the cadre servic e was allowed. Learned counsel referred to the case of "ABID HUSSAIN and 5 others v. SECRET ARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT , CIVIL SECRET ARIA T, LAHORE AND 5 OTHERS" (2012 PLC (C.S.) 26) which judgment was upheld by the Apex Court while dismissing the Civil Petitions No.75 1-L and 752-L of 2011. Learned counsel also referred to the decisions by Honourable Supreme Court of Pakistan while deciding the Civil Appeals No.213 to 220 of 2018 and Civil Appeals No.208-L, 607 & 608 of 2017. Learned counsel submits that petitioners were repatriated to their parent local governments, against substantive posts, which though declared as dying cadre but never abolished and service
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structure of the petitioners is still intact, and regular promotions were allowed to the petitioners on the basis of seniority , inter-se their respective service cadre. Reference is made to the policy letter dated 05.01.2004. The claim of vested right was refuted stoutly . Per learned counsel, in view of abolition of lowest tier of local government, i.e. Union Council, under the provisions of PLGA, 2019, the petitioners were deployed to perform duties in their parent local governments, which order was passed against a distinctive class of employees, falling in the category of Octroi / Goods Export Tax staff. Learned counsel explained that defunct Union Councils are temporarily working for ensuring continuity in provisioning of public services and the employees belonging to the general care of regular employees of LG&CD department were tasked to perform duties accordingly under sub-section (2) of section 316 of PLGA, 2019. Learned counsel reiterat ed that repatriation orders are class / cadre specific and not a result of alleged pick and choose policy . With reference to W.P. No.39293 of 2016, learned counsel submits that petitioner has not joined the duty assigned with the District Council Sialkot, in terms of order of repatriation. Adds that salaries for few months were paid in compliance of order of this court. Learned counsel refuted the claim of salary on account of failure of the petitioner to join duties, since 31.12.2016. Further submits that no right of permanent absorption can be legally claimed, in view of submissions made. 7. Arguments heard. And record perused. 8. Before adverting to the submissions, it is apt to dispose of Miscellaneous Applic ation bearing C.M.No.3 of 2020, filed for seeking permission to implead the applicants therein as party to instant proceedings. Applicants alleged that they are serving as Secretaries Union Councils, as employees of LG&CD department, having separate service structure and cadre, some of whom, inter-alia, are deputed to manage the defunct Union Councils upon repatriation of the petitioners. In essence, the petitioners, through these petitions, have questioned the legitimacy of orders of their repatriation, and not raised any competing claim against the Applicants, impliedly or explicitly . The applicants though dispute the claim of permanent absorption, by way of shifting from one cadre to another , but have not objected to the utilization of services of the petitioners, as Secretaries Union Council in the year 2002. The service structure / cadre of these two set of employees is different, who are governed by separate set of rules and inter-se status was not the pivotal dispute inn these proceedings. In view of peculiar nature of instant proceedings, presence or representation of the applicants is not necessary for the determination of questions raised and no prejudice is likely to be caused to the applicants upon determination of the ques tions of law raised. Hence, the application under reference is dismissed. 9. There is no dispute that petitioners - except the petitioner in W.P. No.39293 of 2016 - were appointed as Octroi Tax Inspectors / Naib Qasids and Goods Export Tax Clerks, who were entrusted with the responsibility of collection of Octroi and Goods Export Tax, before its abolition in the year 1999. Undisputedly , the posts of Octroi / Goods Export Tax staff were created in terms of Octroi Rules, 1964 and Export Tax Rules, 1990, whose terms and conditions of services were governed and regulated in terms of West Pakistan Municipal Committee Service Rules, 1969 (Service Rules, 1969), which rules were repealed subsequently by the Punjab Local Councils Servants (Service) Rules, 1997 (Service Rules, 1997). It is pertinent to mention that Service Rules, 1997 were framed in exercise of powers under section 43 of PLGO, 1979. It is not disputed that various employees of LG&CD Department were also performing duties as Secretaries Union Council(s) [BS-5] - upgraded from time to time -, who were appointed in terms of serial No.54 of Punjab Local Government and Community Development Department Services Rules 1981 - framed in exercise of powers conferred in terms of section 23 of the Punjab Civil Servants Act, 1974 (Service Rules, 1981). There were employees, acting as Secretaries of Municipal / Town Committees (BS-1 1), appointed in terms of Punjab Local Council Services (Appointment and Conditions of Services) Rules, 1983 - framed in exercise of powers under section 42 of PLGO, 1979 (Service Rules 1983), upgraded from time to time. That serial No.54 of Service Rules, 1981 and Service Rules, 1983 were, later on, repealed through the Punjab Local Government District Service (Tehsil / Town Municipal Administration Cadre) Rules, 2005), which TMA cadre Rules, 2005, were repealed through the Punjab Local Government Service (Appointment and Conditions of Service) Rules, 2018, which referred rules are not applicable to the service cadre of the Petitioners. It is not disputed that service structure / cadre of the petitioners - treated as servants of the Local
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Council Service - is different from the service cadre of the members / employees of Local Government Service, as referred under section 296 of PLGA, 2019. The alleged claim of permanent absorption is required to be examined in the context of aforesaid undisputed facts and mutually exclusive set of rules. 10. The Petitioners allegedly claimed permanent absorption as Secretary Union Council(s), primarily on the basis of letter dated 27.06.2002, alleging that services stood permanently absorbed as part of Schedule of Establishment of Union Administration / Union Council(s ). It is stressed that, instead of fresh recruitment in the successive local governments constituted in terms of PLGO, 2001, the petitioners were adjusted in respective tiers thereof, and now they cannot be repatriated to their parent local government(s) against the posts, declared as dying cadre. The counsels for the respondents refuted this claim, alleging that claim is contrary to the record and is otherwise against the legislative intent manifested through section 184 of PLGO, 2001. Whether the services of the petitioners were merely utilized without being absorbed permanently into different service cadre, is the fundamental question. The scope of section 184, ibid, is critical. It is expedient to reproduce section 184, ibid, which reads as; "184. Bar on recruitments.- (1) During the transition period specified in section 187 and till the adjustment for optimal utilization of all employees of the Government, Local Council Service and Servants of Local Councils, no fresh recruitment shall be made to fill any vacancy in the local governments set up under this Ordinance, except with the express sanction of the Government. (2) The Government shall make available the services of the employees placed in its surplus pool for utilization in the offices decentralized to the District Government,T ehsil Municipal Administration, Town Municipal Administration and Union Administration. (3) The local governments shall utilize the services of the employees of the Loca l Councils set up under the repealed Punjab Local Government Ordinance, 1979 (VI of 1979) for meeting the shortfall in the offices of the Zila Councils, Zila Nazims, Tehsil Councils, Tehsil Municipal Administrations, Town Councils, Town Municipal Administrations, T ehsil Nazims, T own Nazims and Union Administrations." [Emphasis supplied] 11. The services of the three categories of employees, i.e. Government, Local Council Service and Servants of Local Councils were utilized. The petition ers, for all intent and purposes, were treated as Servants of the Local Councils, whose services were government under the Service Rules, 1997. Upon perusal, the legislative intent is clear and calls for no ambiguity . Section 184 of PLGO, 2001 does not in any manner extend or confer any statutory right of horizontal movement or absorptio n, from one service cadre to a different cadre. The objective / purpose of section 184, ibid, was to utilize the services of the petitioners, which exigency could hardly be construed as appointment by transfer or absorption. There is nothing available on record to substantiate the appointment of the petitioners as Secretary Union Council(s) or confirmation as part of another cadre, under the applicable rules with respect to said service cadre. The petitioners had not claimed benefit of appointment, either , under serial 54 of Service Rules, 1981 or Service Rules, 1983, which cater different class of employees. The claim of permanent absorption through alleged adjustment, on the basis of letter dated 27.06.2002, is misconceived and holds no legal basis. Whether any legal or enforceable right has been created by letter dated 27.06.2002 or was it a merely an indication of assignment of duties. In order to ascertain the legitimacy of alleged claim, it is expedient to repro duce contents of letter dated 27.06.2002, which reads as; "1. All the Zaila Councils is in the Punjab 2. All the T chsil/T own Nazims in the Punjab. 3. All the Union Nazims in the Punjab. Subject: SCHEDULE OF EST ABLISHMENT OF TMAs /UNION ADMINISTRA TIONS. This is continuation of this Department' s letters of even number , dated 20.06.2002 and 25.06.2002 on the above noted subject. It is clarified that all the employees of L.G & RD Department, defunct Zila Councils, defunct Urban Local Councils (now TMAs) and others posted in the Union Administration as Secretary Union Councils/Naib Qasids etc. subject to a maximum of three Secretaries and two Naib Qasids Union Administration shall now become a part of Schedule of Establishment of the respective Union Administrations in which they have been
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posted. These posts shall stand abolished from the Schedule of Establishment of L.G &RD Department, defunct Zila Councils and defunct Urban Local Councils/TMAs on and will be borne on the Schedule of Establishment of respective Union Administrations w.e.f. 1st July 2002. The Union Administrations should complete all codal formalities by getting the Schedule of Establishment approved from their respective Union Councils. 2. All the Union Nazims arc advised to ensure that the employees posted in their Union Administrations should get their salaries w .e.f. 01.07.2002 out of the Budget of their Unions. (YOUSAF NASIM KHOKHAR) ADDITIONAL, SECRET ARY (COORD.)". 12. The reliance of the petitioners on letter dated 27.06.2002 is misconceived. Mere classification of posts for provisioning of maximum of three Secretaries and two Naib Qasids in the Schedule of Establishment of respective Union Administration does not imply or manifest alleged absorption of the petitioners in general cadre of regular employees of the LG&CD department. The Schedule of Establishment merely sets forth the staff to be employed and do not endorse or substantiate factum of alleged absorption of the petitioners as Secretary Union Councils. No case of proper , legal and valid absorption is made out. No material steps were ever initiated or concluded to affect alleged absorption of the petitioners. In this case no benefit could be claimed in terms of section 184 of PLGO, 2001 and letter dated 27.02.2002. The submissions made are, even otherwise, contrary to the facts on record, which clearly manifest that petitioners lately secured promotions on the basis of seniority , inter-se their peers, i.e. Octroi / Goods Export Tax staff cadre. The peculiarity of Octroi / Goods Export tax service cadre was meticulously adhered to while allowing promotions to the petitioners, which particular fact was not controverted. The seniority of the petitioners, for the purposes of promotions, was reckoned from the date of appointment of petitioners as Octroi / Goods Export tax staff and not from the date of alleged absorption in the year 2002. Above all, the record of the service of the petitioners maintained its separate identity and acted upon at the time of allowing promotions. It was categorically mentioned in the policy letter dated 05.1.2004, which also defines status of the petitioners, that the posts of Octroi / Goods Export Tax staff were not abolished notwithstanding the abolition of tax regime. It is notable that Octroi / Goods Export Tax service cadre…
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