1. The brief facts out of which the present intra Court appeal arises are that appellant was appointed as Assistant Food Controller on current charge basis vide order dated 15.10.2003 passed by the Deputy Director Food, Gujranwala Division, Gujranwala. The appellant submitted representation to the Chief Minister for his regular appointment to the said post and the Chief Minister Secretariat issued directive on 10.12.2003 which reveals as under:- "Request of the applicant for allowing him to work on regular permanent basis as Assistant Food Controller may be considered favourably."
2. In view of the aforesaid directive of the Chief Minister's Secretariat the appellant was appointed as Assistant Food Controller on regular/permanent basis vide order dated 23.12.2003 passed by the Deputy Director Food. The appellant again approached the Chief Minister's Secretariat and secured a directive dated 11.8.2004 according to which appellant was allowed to continue as Assistant Controller, which was also followed by a reminder issued by the Chief Minister's Secretariat dated 1.9.2004, Deputy Secretary, Confidential vide letter dated 31.3.2004 intimated the Deputy Director Food, Gujranwala Division, Gujranwala under the direction of the concerned Secretary to withdraw promotion orders of appellant and Abdul Latif immediately under intimation to the Government of the Punjab, Food Department. Deputy Secretary Confidential subsequently issued another letter to the Deputy Director Food, Gujranwala Division, Gujranwala vide letter dated 12.8.2004 wherein he was directed to withdraw the promotion orders of the appellant immediately. The appellant being aggrieved filed W.P. No. 16108-2004 which was dismissed by the learned single Judge vide impugned order dated 1.10.2004. The appellant being aggrieved filed this intra Court appeal.
2. Learned counsel of the appellant submits that Chief Minister is the competent authority to redress the grievance of the appellant in view of the Rules of Business read with Section 22 of the Punjab Civil Servants Act, 1974. He further submits that aggrieved persons of the Department have challenged the order before the competent authority who dismissed the same. He further submits that vested right has accrued in favour of the appellant after passing the order by the Deputy Director Food, therefore, Deputy Secretary Confidential ahs no lawful authority to give direction to the competent authority to withdraw the promotion order of the appellant. He further submits that impugned order is also not in consonance with the gradation list of Assistant Food Controllers as stood on 1.5.2004 which is attached with the Constitutional petition as Annexure-III at page-28. He further submits that appellant is the only person who is eligible to be appointed against the post in question being B.A., whereas the other persons have not requisite qualification. He further submits that Learned single Judge erred in law to rely the case of A.R. Azar Vs. Federation of Pakistan (PLD 1958 Lahore 185). The facts of cited case are entirely different.
3. We have given our anxious consideration to the contentions of the learned counsel of the appellant and perused the record.
4. It is better and appropriate to reproduce list of gradation to resolve the controversy between the parties:-- GRADATION LIST OF ASSISTANT FOOD CONTROLLERS AS STOOD ON 1.5.2004 FOOD DEPARTMENT, GUJRANWALA DIVISION GUJRANWALA.
3. ((START TABLE)) Name of official Present place of posting Academic qualification Mr. Mushtaq Ahmad Goraya Gujranwala B.A.
4. Mr. Habib-ur-Rehman Gujranwala B.A.
5. Mr. Siyaf Ali Abbas Sialkot B.A, Mr. Muhammad Yunas Sindhu Gujranwala Matric Rana Mansoor Ahmad Khan Sialkot B.A.
6. Mr. Mushtaq Ahmad Cheema Gujranwala B.A.
7. Raja Qamar-uz-Zaman Gujrat B.A.
8. Mr. Muhammad Yaqub Sindhu Gujranwala F.A.
9. Mr. Muhammad Nazir Mangat Gurjat F.A.
10. Mr. Muhammad Ashraf Gujrat Matric Mr. Saleem-Ullah Gujrat Matric Khawaja Alla-ud-Din Gujranwala F.A.
11. Mr. Zaka-Ullah Gujrat Matric Mr. Asad Ullah Khan Gujranwala F.A.
12. Mr. Abdul Qahar Khan Sialkot Matric Mr. Ali Imam Zaidi Gujranwala Matric Mian Muhammad Akbar Gujranwala B.A.((TABLE END))
13. Mere perusing the above list reveals that 6 persons who are senior to the appellant have degree of B.A. it is settled proposition of law that Chief Executive of the Province has power to redress the personal grievance of the civil servant but he was no power to snatch the right of another employee/colleague of the appellant as is held by the Hon'ble Supreme Court in Muhammad Iqbal Khokhar's case (PLD 1991 SC 35). Relevant observation is as follows:-- "These provisions permit the Chief Minister and the Punjab Government in individual cases of hardship to relax the rules, it is one thing to remove the strict application of a rule to remove hardship in an individual case, it is another to defeat the rule to bolster an individual's case, so as to destroy another's right. Under these provisions, cases of removal of hardship are dealt with.
14. Since the instant case was not decided under these provisions, one may safely infer that the instant case was not one of undue hardship qua respondent No. 2. What was the field therefore, left open to the learned Governor, to resort to action under section 22 of fife Punjab Civil Servants Act, 1974, remains to be seen."
15. "The grant of seniority or promotion under section 22, unless it meets the strict test of being just and fair, can only be a colourable violation of the law under the guise of its exercise, which cannot be permitted. Discretion, even where outwardly appearing as absolute, y/ill always be treated as qualified by the terms and spirit of the provision in which it occurs and by the object of the law. See Federation of Pakistan Vs. Muhammad Saifullah Khan (PLD 1959 SC 166), where the President of Pakistan's exercise of discretionary powers under Article 58(2)(b) of the Constitution were struck down for violating the terms and spirit of that Article."
16. The aforesaid view was also taken by the Hon'ble Supreme Court in Capt. (Retd.) Abdul Qayyum Vs. Muhammad Iqbal Khokhar (PLD 1992 SC 184). The relevant observation is as follows:-- "6. As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servant Act" the bounty and the generosity of the Governor has been placed under a limit, it is not to be so exercised so as to infringe, impair or curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Articled and Article 240 of the Constitution.
17. The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cots of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of redressal, of providing a relief and not of impairing statutory rights of anyone."
18. It is the duty and obligation of the competent authority to refer the case back to the Chief Minister's Secretariat in terms of Rules and Regulations and the law laid down by the superior Courts but the Deputy Director Food did not adopt this method which is not in consonance with Zahid Akhtar's case (PLD 1995 SC 530). it is also settled principle of law that constitutional jurisdiction is discretionary in character. The learned single Judge has refused to exercise discretion in favour of the appellant which is in consonance with the law laid down by the superior Courts in the following judgments:-- Nawab Syed Raunag AH Vs. Chief Settlement Commissioner (PLD 1973 SC 236).
19. Rana Muhammad Arshad Vs. Additional Commissioner, Revenue (1998 SCMR 1462).
20. It is pertinent to mention here the intra-Court appeal is not parameteria to appeal filed by the aggrieved person under Section 96 of Code of Civil procedure.
5. As discussed above, we do not find any infirmity or illegality in the impugned order of the learned single Judge. Intra-Court appeal has no merit and the same is dismissed.