SYED JAMSHED ALI, J.- This writ petition seeks a direction in the nature of a writ of quo-warranto against respondent No. 2, who is a Grade-17 Officer but vide order dated 2.1.2004 of the Secretary, Local Government and Rural Development Department, he has been appointed as Town Officer.
Finance T.O.F for short in the Tehsil Municipal Administration (T.M.A for short), Data Ganj Bakhsh Town, Lahore, it is not disputed that the said post is in BS-19.
2. The petitioner is a member of the Local Council Service in the Accounts Functional Unit and is in BS-18 vide order dated 22.10.2003, he was appointed as T.O.F in the T.M.A Data Ganj Bakhsh Town, Lahore and respondent No. 2, who was working as T.O.F) in the said Town was directed to report to the Director General (Katchi Abadi). However, vide order dated 2.1.2004, respondent No. 2 was appointed as (T.O.F) and the petitioner was directed to report to the parent Department with immediate effect.
3. The petitioner has not claimed any relief to himself. The learned counsel for the petitioner placed reliance on the order dated 4.5.1998 passed in C.P. No. 77/1998 on the basis of the undertaking of the Department to consider appointment of officers of lower grades to the posts in the higher grades and the following observation:- "Sufficient reasons should be available on record for the posting of an officer in a higher grade.
When the officers in the same grade are available, it is expected that one such officer should be appointed against a post, which is available for appointment, according to applicable rules."
He also relied on the report and parawise comments submitted by the Secretary, Local Government, respondent No. 1, according to which the petitioner as well as respondent No.2 were in-eligible for the post in question. He vehemently contended that the impugned order is arbitrary and politically motivated because there are 7 grade-19 and 24 grade-18 Officers in the Accounts Functional Unit and appointment of an officer of grade-17 to post in Grade-19 could not be justified on any ground whatsoever.
4. The learned Addl. Advocate-General appears for respondent No. 1. He has defended the impugned order on the ground of administrative expediency. The learned counsel for respondent No. 2 submits that the arrangement, vide the impugned order, is temporary, the petitioner continues to draw salary of a 17 grade post and the impugned order has been passed in public interest. He explained that the available grade-19 and grade-18 Officers are being utilized on other posts.
5. The submissions made by the learned counsel for the parties have been considered. The impugned order does not say that it is a temporary arrangement, it is common ground that the service to which the petitioner and respondent No. 2 belong is governed by the Punjab Local Council Service (Appointment & Conditions of Service) rules, 1983. The aforesaid 1983 rules are silent as to the powers of the appointing authority to post a grade-17 officers to a post in grade-19.
However, according to Rule 22 of the aforesaid 1983 Rules the members of the service shall be governed as nearly as possible by the Punjab Civil Service Rules, Civil Service Pension Rules, Punjab Civil Servant T.A. Rules, West Pakistan Government Servants (Medical Attendance) Rules, 1959 and such other General Rules as have been or may hereafter be prescribed by the Government from the to the (emphasis supplied). Therefore, in the matters on which the aforesaid 1983 rules are silent the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 will apply. The said Rules provide for appointment on acting charge basis, on current chare basis, appointment by promotion on officiating basis and ad hoc appointment apart from appointment by initial recruitment, promotion or by transfer, it is not a case where respondent No. 2 has been appointed to the post by initial recruitment, or by promotion by transfer, i.e. Deputation.
6. Appointment on Acting Charge basis is contemplated by Rule 10-A of 1974 Rules and it is the senior most officer, who is entitled to be appointed to a post reserved for departmental promotion on that basis and that too on the recommendation of the Departmental Promotion Committee or the Provincial Selection Board. Rule 10-B of 1974 Rules provides for appointment on current charge basis. Again, it is the senior most civil servant, who is entitled to be appointed to a post on that basis, who in the opinion of the appointing authority, is eligible and suitable for promotion under the relevant rules. Rule 11 caters for borrowing from other departments which is not relevant for the present controversy. Rule 13 speaks of appointment by promotion on officiating basis and it is not relevant in this case either because respondent No. 2 has not been promoted on officiating basis.
Even for making ad hoc appointment under Rule 22 of 1974 Rules there is requirement of advertising the vacancy in the newspaper. Therefore, appointment of respondent No. 2, a grade-17 officer, to a post in BS-19, is not in accordance with any of the aforesaid rules.
7. The fact that respondent No. 2 is not eligible for the said post has been conceded by the Secretary, Local Government in the report and parawise comments. The reason apparently is that the Town Nazim is interested to retain respondent No. 2 as T.O.(F) because in para 1 of the report the Secretary, Local Government, has stated that when respondent No. 2 was transferred vide order dated 22.10.2003 from the post of T.O.(F), T.M.A. Data Gang Bakhsh Town, the Town Nazim was reluctant to relieve him. Again in para 2, it is stated that respondent No. 2 was posted as T.O. (F) vide the impugned order, the Town Nazim immediately relieved the petitioner. From these facts, the interest of Town Nazim in the appointment of respondent No. 2, to a post higher, than his grade, is manifest. The Secretary, Local Government, oblige the Town Nazim instead of acting in the matter in accordance with the law. Therefore, the impugned order is not only contrary to the rules but is also arbitrary in as much as that if the said post could be manned by a grade 17 officer, than it could be manned by grade 18 officer and besides the petitioner, there were 23 grade 18 officers in the Accounts Functional Unit.
8. I am fully conscious that the impugned order is prima facie a warrant under which, respondent No. 2 holds the post, it may, however, be observed that it is only an order passed in accordance with law which could be put up as defence to a writ of quo-warranto. Reference may be made to Dr. Sher Bahadur Khan Panee, M.B.B.S., P.M.S, Deputy Inspector-General of Prisons, Northern Range, Peshawar Vs. The Government of West Pakistan, through the Chief Secretary, West Pakistan Government Lahore and Dr. Saeed Ahmad Khan, M.B.B.S., M.S., Deputy Director of Health Services, Peshawar (PLD 1956 Peshawar 77) and Mr. A.R. Azar, Deputy Chief Engineer, West, North-Western Railway, Lahore and others Vs. The Federation of Pakistan and Mr. A.S. Faroqui, Director Civil Engineering, Railway Division, Karachi (PLD T958 Lahore 185). it may be noted that public employment is no more bounty of the State or its functionaries. Rule of law is a cherished goal of any civilized society and it will remain an illusion if abuse of administrative authority continues unabated, it will be appropriate to reproduce the observation of (late) M. Kayani, J, from the judgment in the case of Mr. A. R. Azar, supra:- "The old decisions like I.M. Lad's applied in the context of sovereignty, and sovereignty now belongs to."Allah Almighty alone" says the Preamble to the Constitution. Even if the Preamble had been less pious, the King-can-do-no-wrong theory was by its very nature in applicable to a democratic State."
9. For what has been stated above, this writ petition is allowed with costs. The impugned order dated 2.1.2004 insofar as it directs posting/appointment of respondent No. 2 as T.O. (F), T.M.A., Data Ganj Bakhsh Town; Lahore is declared as without lawful authority with the result that the said post shall be deemed to be vacant to be filled in accordance with law and the applicable service rules.