' KARIMULIAH DURRANI, J.-In this Constitutional Petition Bahadur Khan, an employee of the Peshawar Municipal Corporation has assailed the orders of respondent No, 3, Additional Commissioner, Peshawar Division, Peshawar dated 17th May, 1978 and of respondent No, 6, Chief Officer, Municipal Corporation, Peshawar dated 24th August, 1978, as without lawful authority and having no legal force.
2. Briefly stated facts leading to this petition are as under :- ' The petitioner is an employee of the Municipal Corporation of Peshawar. Before its upgrading to the status of a Corporation the Municipal Body of Peshawar was, during the period relevant to this petition, a Municipal Committee of the 1st Class. This Municipal Committee was superseded under section 66 of the N.-W. F. P. Local Government Ordinance, 1972 and its functions were entrusted to the Administrator appointed by the Provincial Government. The petitioner, who had been working in the Municipal Committee, Peshawar as an Octroi Inspector for a number of years was, on 14th July, 1977, elevated to the post of Assistant Octroi. Superintendent by the order of the Administrator of the Municipal Committee (in this petition arrayed as respondent No, 4), respondent No, 5, Mr. Mahmood Khan and another employee of the Municipality, Haji Fazal-ur-Rehman (not impleaded as respondent in this petition) being aggrieved of this appointment preferred two separate appeals under section 77 of the above mentioned Ordinance to the Additional Commissioner, Peshawar Division, Peshawar (respondent No, 3), who, on 17th May, 1978, by his impugned order set aside the order of the Administrator dated 14th July, 1977; elevating the petitioner to the post of Assistant Octroi Superintendent, and remitted the case back to the Administrator Municipal Committee, Peshawar (respondent No, 4) for decision afresh after observing the legal formalities.
The legal formalities referred to by the learned Additional Commissioner, Peshawar Division are contained in Rule 6 of the West Pakistan Municipal Committees Service Rules, 1969, which governed all the appointments to the service of the Municipal Committee. Consequent to the said order, the Chief Officer Municipal Corporation, Peshawar (respondent No, 6), passed an Office Order on 24th August, 1978, whereby Mahmood Khan (respondent No, 5) was appointed to the post of the Assistant Octroi Superintendent and the petitioner was reverted to his old post in the old scale.
Being aggrieved of these orders the petitioner has filed the instant Writ Petition.
3. We have heard the learned counsel for the parties and have also examined the record. The following questions emerge for determination by this Bench from the arguments of the parties.-
(1) Whether the Administrator of the Municipal Committee was competent to pass the order dated 14th July, 1977, whereby the petitioner was promoted to the post of Assistant Octroi Superintendent without observing the requirements of rule 6 of the West Pakistan Municipal Committees Service Rules, 1969.
(ii) Whether the appeal of respondent No, 5 was competent, and
(iii) Whether the Additional Commissioner Peshawar Division, Peshawar was a competent authority to hear the appeal from the order of the Administrator.
4. As far as the first question is concerned, it has been tilled on behalf of the respondents that under rule 5 of the West Pakistan Municipal Committees Service Rules, 1969, the appointments. To the various posts are to be made by the authority specified in this behalf in West Pakistan Municipal Committee (Business) Rules, 1960, on the recommendations of the Service Board concerned. The provisions for the Service Board are laid down under rule 6, which is as follows :- "Service Board. -(1) For every Municipal Committee, there shall be a Service Board consisting of the Chairman, Vice-Chairman and Chief Officer and all appointments to the Service of the Municipal Committee shall be made on the recommendations of this Board.
(2) If in any case, the appointing authority does not propose to accept the recommendations of the Service Board, the case shall be submitted to the Controlling Authority whose orders in this behalf shall be final."
' The Authority under the West Pakistan Municipal Committee (Business) Rules, 1960, in respect of Municipal Committees of the first class, as Peshawar Municipality then was for the appointment in the Municipal service, in the minimum scale of pay not exceeding Rs, 250, is the Chairman of the Municipal Committee. The case of the respondent is that as minimum pay scale of the petitioner in grade No, 8, to which he was appointed as an Assistant Octroi Superintendent was more than Rs, 250, he could only be appointed on the recommendations of a Service Board and as admittedly the appointment in question was made by the Administrator without the recommendations of the Service Board, it was void, ab initio.
5. Although the argument advanced on behalf of the respondents at the face of it carries some weight, a minute scrutiny of the factual and legal state under which the Municipal Committee at that time was functioning presents an entirely different picture. As already has been stated, at the relevant time the Municipal Committee, Peshawar stood superseded and an Administrator was appointed under the Orders of the Provincial Government by virtue of a notification. All the powers and the functions of the Municipal Committee, including those of its Chairman and other office- bearers, were by the notification conferred upon the Administrator. The Administrator functioning at that time thus had the office of the Chairman and the Vice-Chairman of the Municipal Committee combined in himself. The third member of the Service Board, namely the Chief Officer was only available at that time. Had the decision been taken by the Administrator exercising the powers of the Chairman and the Vice-Chairman and the Chief Officer, collectively the order could have been deemed to be on the recommendations of the Service Board. As the impugned order was passed by the Administrator solely, therefore, there is some force in the contention of the respondents that it could not be termed as having been passed on the recommendations of the Service Board. But the matter does not end here as the Municipal Committee with all its offices and Branches had ceased to function by its supersession under section 66 of Ordinance III of 1972 read with the Martial Law Order No,
21. The Service Board had thus ceased to operate and the Administrator, enjoying all the cumulative powers of the Municipal Committee, was thus fully competent to pass the order. In this view of the matter no exception could be taken to the order of the Administrator.
6. It has been urged on behalf of the petitioner that the appeals of respondent No, 5 and another were not competent in that no appeal was provided under the Rules by a Municipal Servant in such matters as in hand.
' The provision of appeal is contained in section 77 of the N.-W. F. P. Local Government Ordinance, 1972, which is as follows.- ' Appeals.-(1) Any person aggrieved by an order passed by a People's Local Council or its Chairman in pursuance of this Ordinance, or the rules or bye-laws may appeal to such authority, in such manner and within such period as may be prescribed.
(2) Any order passed in appeal shall be final and shall not be called in question in any Court.'
7. The above quoted provision of law would show that while a general right of appeal has been provided against the orders of the Chairman, it would be available in the prescribed manner within the prescribed period of limitation and the appeal would be to the prescribed forum.
8. The dispute had arisen out of a service matter. Respondent No, 4 allegedly being senior in service felt aggrieved of the selection/appointment of the petitioner to the post in dispute and sought redress by way of appeal. Admittedly, no Rules have yet been framed governing the appeals under section 77 of the Ordinance. The Rules holding the field at the time of enforcement of this Ordinance and framed under the laws repealed by this Ordinance would by virtue of section 23 of the West Pakistan General Clauses Act, 1956, still be applicable till such time as these are replaced by those which may be framed under the Ordinance. The appeals at that time were governed by the W. P. Municipal Committees (Appeals) Rules, 1960, which, vide rule 1 (3) of the same are not applicable to appeals by Municipal Servants in matters relating to their service. An appeal was only provided to a Municipal servant under rule 40 of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963 only in those cases where a penalty was imposed upon him under rules 36, 37 and 38 of the said Rules. Rule 8 (ibid) enumerates minor and major penalties which could be imposed upon a Municipal Servant. This rule is as under : "8. The penalties that may be imposed under these rules upon a Municipal servant shall be-
(a) Censure ;
(b) Withholding of increment, with or without cumulative effect, including stoppage at an efficiency bar for a specified period not exceeding three years ;
(c) Recovery from his pay of the whole or part of any pecuniary loss caused to the Municipal Committee by negligence or breach of orders ;
(d) Reduction to a lower post or time-scale, or to a lower stage in a time-scale ;
(e) Compulsory retirement ;
(f) Removal from service ; and
(g) Dismissal from service.
' The penalties specified in clauses (a), (b) and (c) of rule 8 shall be minor penalties and those specified in clauses (d) (e), (f) and (g) of the said Rule shall be deemed major penalties."
' It is apparent from the fact of the case that the grievance of rule 4 against the appointment of the petitioner to the post in question was that he being senior to him was ignored for appointment or rather he was superseded. Although no rule of law has been brought to our notice, enjoining upon the Authorities concerned to appoint the senior most employee of the Municipality on a post of this nature, it certainly does not form one of the penalties enumerated under Rule 8-and did not in any manner fall under rules 36, 37 and 38 of the rules under reference. In Muhammad Ashraf v.
Muhammad Siddique and 2 others (1) an almost similar question in a case falling under the Municipal Administration Ordinance, 1960, came under consideration of a learned Single Judge of the Lahore High Court. Mr. Justice Zakiuddin Pal, J. After an elaborate discussion on the relevant Rules, came to the conclusion that in the matter of appointment of a Municipal Teacher by the Administrator of the Municipality concerned, the appeal by another employee of the Municipality was not competent unless it fell under the purview of rule 40 of the (1) PLD 1977 Lah. 1082 W. P.
Municipal Servants (Efficiency and Discipline) Rules, 1963. While respectfully agreeing with the interpretation of the learned Single Judge in the cited case, we are clear in our mind that the appeal of respondent No, 4 was not competent.
9. After coming to the above conclusion, we do not feel ourselves called upon to decide the further issue in regard to the competency of the learned Additional Commissioner to hear the appeal.
10. The net 'result of the foregoing discussion is that we do not find any fault with the order of respondent No, 4 dated 14th July 1977, appointing the petitioner as Assistant Octroi Superintendent, as the Municipal Committee having been superseded at the relevant time, the Administrator by virtue of the powers conferred upon him by the Provincial Government by the Notification under section 93 of the N.-W.F.P. Local Government Ordinance, 1972 read with M. L.
0. 21 enjoyed all the powers of the Members and the office-bearers of the Municipal Committee and was not bound to obtain the recommendations of a Service Board before the appointment for the simple reason that firstly such Board did not exist at the relevant time and secondly that the functions and powers of the Service Board also vested in the Administrator. We have also found that the appeal of the respondent No, 5 against the said appointment was not competent.
Consequently, the impugned order of the learned Additional Commissioner, dated 17th May 1978, was not passed in exercise of lawful authority and was, therefore, of no legal effect. The order of Respondent No, 6, dated 24th August 1978, having been based on the impugned order of the Additional Commissioner, respondent No, 3, which in itself is void, is also devoid of any lawful authority and is, therefore, null and void.
' This petition, is therefore, accepted in the above terms with no order as to costs.