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Petitioner: FAIZ MUHAMMAD VS Respondent: SECRETARY TO GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT GOVERNMENT
2002 P L C (C
2002 P L C (C.S.) 1047
[Lahore High Court]
Before Muhammad Khalid Alvi, J
FAIZ MUHAMMAD
Versus
SECRETARY TO GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and 3 others
Writ Petition No. 2353 of 1992, heard on 15th February, 2002.
(a) West Pakistan Municipal Committees Service Rules, 1969‑‑‑--
‑‑‑‑Preamble‑‑‑Punjab Local Councils (Appointment and Conditions of Service) Rules, 1983, Preamble‑‑‑Distinction‑‑‑Former rules relate to the servants of the local council while the latter govern the members of the local council service.
(b) West Pakistan Municipal Committees Service Rules, 1969‑‑‑
‑‑‑‑R. 13‑A‑‑‑West Pakistan Municipal Administration Ordinance (X of 1960), Ss.121 & 124‑‑‑Punjab Local Government Act (XXXIV of 1975), Ss.233 & 235‑‑‑Punjab Local Government Ordinance (VI of 1979), 5.182(2)‑‑‑Notification No.SOV.1‑30/81, dated 25‑7‑1990, issued by Government of Punjab‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Service matter‑‑‑Seniority of employees of municipal committee‑‑‑Appeal under S. 13‑A of the West Pakistan Municipal Committees Service Rules, 1969‑‑‑Maintainability‑‑‑Feeling aggrieved of the promotion of the petitioner, the respondent filed appeal under S. 13‑A of the West Pakistan Municipal Committees Service Rules, 1969‑‑‑Appellate Authority having found the respondent senior to the petitioner cancelled the order of the promotion of the petitioner‑‑‑Contention of the petitioner was that the West Pakistan Municipal Committees Service Rules, 1969, were repealed, hence the order passed by the Appellate Authorities was without lawful authority‑‑‑Validity‑‑‑Rules framed under the West Pakistan Municipal Administration Ordinance, 1960, were still in force and under Notification No. SOV.1‑30/81, dated 25‑7‑1990 the provision of R. 13‑A was introduced in the West Pakistan Municipal Committees Rules, 1969 as such the rule so introduced provided a right of appeal and also a revision, therefore, the appeal of the respondent was competent‑‑‑Petitioner was much junior and in lower pay scale than the respondent, he did not deserve consideration as against the respondent‑‑‑High Court declined to interfere with the order passed by the Appellate Authority‑‑‑Constitutional petition was dismissed in circumstances.
Khalid Nadeem Malik for Petitioner.
Akhtar Masood for Respondent No. 1.
Sardar Altaf Hussain Khan for Respondents Nos.2 and 3.
Mushtaq Ahmad Qamar for Respondent No.4.
Date of hearing: 15th February, 2002.
JUDGMENT
Brief facts of the case are that through Resolution No. 18 dated 20‑3‑1991 and Resolution No. 16 dated 14‑12‑1991, the petitioner who was earlier working in BPS‑9 was recommended for promotion as Education Supervisor in BS‑11 and consequently vide order dated 16‑12‑1991 he was promoted. This order was assailed by respondent No.3 by filing an appeal before respondent No.2. This appeal was accepted by respondent No.2 vide order dated 27‑4‑1992 on the ground that the petitioner was at Serial No.4 of the seniority list while respondent No.3 was at Serial No.4 of the seniority list. Secondly the petitioner was working in BS‑9 at the relevant time while respondent No.3 was in BS‑11, therefore, selection of petitioner as Education Supervisor was not found to be proper as against respondent No.3. This order was assailed by the petitioner and respondent No.4 through a revision before respondent No.1. The same was also dismissed vide order dated 25‑6‑1992. Both these orders are being assailed through the instant writ petition.
2. The primary" question " raised by the learned counsel for the petitioner is that whether in the instant case West Pakistan Municipal Committees Service Rules, 1969 are applicable or the Punjab Local Councils (Appointment and Conditions of Service) Rules, 1983. The distinction between the rules is that the former relates to the servants of the local council while the latter governs the members of the local council service. The contention of the learned counsel is that the petitioner is a servant of the local council but since Rules of 1969 are no more in existence, therefore the case is to be governed by the Rules of 1983. It is argued that Rules of 1969 were framed under the Punjab Municipal Administration Ordinance No.X of 1960. This Ordinance was repealed by section 233 of the Punjab Local Government Act, 1975 and since Ordinance No.X of 1960, was repealed, therefore, the rules framed thereunder also stood automatically repealed. It is further pointed out that the Act of 1975 was also repealed by section 182 of the Punjab Local Government Ordinance, 1979. It is thus concluded by him that the Rules of 1969 are no more in existence. The conclusion of the learned counsel is that since the Rules of 1969 are no more in existence, therefore, no appeal was competent before respondent No.2 and consequently no revision war available before respondent No. 1 as well. It is further added that respondent No.3 has since retired in the year 1995, therefore, hid petition has borne fruit.
3. On the other hand, learned counsel for respondent No.3 contends that Rules of 1969 are still in force and under Rule 13‑A introduced vide Notification NO.SOV.1‑30/81 dated 25‑7‑1990 by the Governor of Punjab, right of appeal to a servant of local council and a revision before the Government is provided.
4. I have considered the arguments of the learned counsel for the parties.
5. No doubt, Municipal Administration Ordinance, 1960 was repealed by Punjab Local Government Act, 1975 but under section 235 of the said Act, rules framed under the Municipal Administration Ordinance, 1960 were saved as under:‑‑
"Validation of certain orders Proceeding and Acts, and continuance of functions of certain authorities any officer‑‑‑(1) All orders made, proceedings taken or done by any authority or by any person which were made, taken or done, or purported to have been made, taken or done in exercise of the powers derived under any law or the repealed enactments, notifications, rules, orders or bye‑laws made thereunder shall be deemed to have been validly made, taken or done.
(2) Notwithstanding anything contained in this Act, all authorities an all officers who immediately before the enforcement of this Ac were exercising functions of Local Councils under the repeal enactments or any other law shall continue to exercise their respective functions till the Local Councils are constituted under this Act, provided Government may withdraw all or any of the function from such authorities or officers as it may deem necessary , "
Consequently, 1969 Rules were saved by 1975 Act itself. Likewise, when 1975 Act was repealed by Punjab Local Government Ordinance, 1979, it also saved the earlier rules by section 182(2) as under:‑‑
"Repeal of the Punjab Local Government Act, 1975.‑‑(1) The Punjab Local Government Act, 1975 (XXXIV of 1975) is hereby repealed.
(2) Notwithstanding the repeal of the Punjab Local Government Act, 1975, any appointments, rules, regulations or bye‑laws made or saved, notification, order or notice issued, tax imposed or assessed scheme prepared, or executed, contracts entered into, suits instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act or under, such enactments as were repealed by the said Act, shall so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired made or taken under the Ordinance."
Natural effect is that the rules framed under the Municipal Administration Ordinance, 1960 are still in force, which is also evident from the notification dated 25‑7‑1990, whereby Rule 13‑A was introduced in the said rules by the Governor in the year 1990.
6. Rule 13‑A of the West Pakistan Municipal Committee Services Rules, 1969 provides a right of appeal and also a revision, therefore, the argument of the learned counsel for petitioner that the appeal of respondent No.3 before respondent No.2 was not competent is without any substance.
7. It does not make any difference that respondent No.3 has retired since 1995. The rights of the parties are to be determined in accordance with law.
8. Even otherwise on merit, I do not find any reason to interfere in the impugned orders inasmuch as the petitioner was much more junior and in a lower pay scale than respondent No.3, thus he did not deserve consideration as against him.
9. For what has been stated above, I find no merit in this writ petition, which is accordingly dismissed. No order as to costs.
Q.M.H./M.A.K./F‑100‑L Petition dismissed.