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Petitioner: AKHTAR MAHMOOD VS Respondent: COMMISSIONER, GUJRANWALA DIVISION, GUJRANWALAHonorable Justice Maulvi Amvarul HaqDr. Ehsan ul Haque Khan,Nemo
2003 P L C (C
2003 P L C (C.S.) 422
[Lahore High Court]
Before Maulvi Amvarul Haq, J
AKHTAR MAHMOOD
Versus
COMMISSIONER, GUJRANWALA DIVISION, GUJRANWALA and 8 others
Writ Petitions Nos.7682 and 7883 of 1999, heard on 6th June, 2002.
Punjab Local Councils Servants (Service) Rules, 1997‑‑‑‑
‑‑‑‑R. 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appeal, competency of‑‑‑Petitioners who were employees of Municipal Corporation, were promoted to posts of Octroi Inspector and Head Clerk respectively‑‑‑Respondents tiled appeals against order of promotion of petitioners before Additional Commissioner who allowed the same‑‑ Appellate Authority under R.12 of Punjab Local Councils Servants (Service) Rules, 1997, being Commissioner, Additional Commissioner before whom appeals were filed hid no jurisdiction in the matter‑‑‑Orders passed by Additional Commissioner were declared to be without lawful authority and were set aside by High Court.
Dr. Ehsan ul Haque Khan for Petitioner.
Nemo for Respondents.
Date of hearing: 6th June, 2002.
JUDGMENT
This judgment shall decide the Writ Petitions No.7682 and 7883 of 1999 as common questions are involved.
2. In both these cases the petitioners and private respondents are employees of Municipal Corporation Sialkot. The petitioners in these eases were promoted to the post of Octroi Inspector and Head Clerk (Health) respectively. The private respondents in these cases filed appeals which were heard by an Additional Commissioner (Rev) Sialkot, who allowed the same and set aside the promotion orders vide order dated 8‑4‑1999.
3. Learned counsel contends that rule 13‑A of West Pakistan Municipal Committees Service Rules, 1969 have since been repealed and appeals filed under said Rule were not competent. Vehemently urges that the appellate authority was the Commissioner of the Division and Additional Commissioner (Rev) had no jurisdiction to hear and decide the appeals. No one has turned up for the respondents, to whom registered P.C. notices have been issued for today but no one has turned up on their behalf and they are proceeded against ex parse.
4. So far as the said first contention of the learned counsel is concerned, I am not inclined to agree with the same. No doubt that the said Rules, 1969 were repealed but Punjab Local Councils Servants (Service) Rules, 1997 were promulgated and right of appeal is very much there. This is a case of mentioning of a wrong statutory provision and would not at all derogate from the right vesting in the private respondents. However, the said second contention of the learned counsel has force. Under the said Rules, 1997 the appellate authority was Commissioner of the Division and Additional Commissioner (Rev.) would not be having jurisdiction in the matter. Learned counsel has brought to my attention a copy of order passed by the Hon'ble Supreme Court of Pakistan in Civil Petition 1029‑L of 1995 on 25‑2‑1996. Although the order was passed on consent but the said legal position was conceded i.e. Additional Commissioner was not competent to pass the appellate order in the similar circumstances. Even otherwise the provision of the said Rules, 1997 or for that matter of the repealed Rules are absolutely clear. In view of the above discussion, these writ petitions are allowed and the impugned order, dated 8‑4‑1999 of the Additional Commissioner (Revenue) Gujranwala, are declared to be without lawful authority and are set aside. The result would be that the appeals filed by the private respondents in both these cases shall be deemed to be pending before the successor‑in‑office of the Commissioner Gujranwala Division i.e. D.C.O., who shall summon the parties and decide the matter after hearing them.
A copy of this order be immediately remitted to the D.C.O. Gujranwala, for compliance.
H.B.T./A‑576/L Petitions allowed.