SAYED ZAHID HUSSAIN, J. - The petitioner who claims to be a member of Punjab Local Council Service (BS- 17) was posted as Town Municipal Officer (TMO), Ferozewala, District Sheikhupura on 26.11.2005. On a reference made by Tehsil Nazim. Ferozewala that he may be allowed to continue as such, it was ordered by the Chief Minister Secretariat on 31.3.2006 that he may continue "in his present place of posting till his retirement i.e upto 14.12.2007." However, order dated 17.4.2006 was issued by respondent No. 1 posting respondent No. 3 as TMO, TMA, Ferozewala in place of the petitioner. This order has been assailed through this petition under Article 199 of the Constitution 6f Islamic Republic of Pakistan, 1973.
2. It is contended by the learned counsel that respondent No. 3 who is a deputationist from NTC (National Telecommunication Company Ltd.) cannot be posted as TMO (Town Municipal Officer) whose appointment is violativ of Rule 3(3) and Rule 7 of Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005. It is contended that the petitioner has been displaced merely to accommodate respondent No. 3 contrary to law and the rules on the subject.
3. The learned Additional Advocate-General, Punjab as also the learned counsel for respondent No. 3 invoke Rule 20 of the same Rules to contend that alternate remedy of departmental appeal being available to the petitioner the petition is not competent, in addition the learned Additional Advocate-General, Punjab has placed on record written instructions to him on the subject that "the petitioner Ch. Azhar Hussain being a member of Local Councils Service is not a Civil Servant for the purposes of Punjab Service Tribunal Act, 1974." In response to the objection as to the maintainability of the petition, the learned counsel for .The petitioner contends that since order dated 17.4.2006 has been passed by the Government -i.e. Secretary, Local Government and Rural Development Department, Government of the Punjab, such a remedy cannot be availed by the petitioner there being no higher authority mentioned in the rules.
4. Since there is a clear stance of the petitioner as also of the Government of Punjab that he belongs to. Local Council Service and is not a civil servant the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 do not get attracted to such a case.
5. Insofar as the . Adequacy of remedy of departmental appeal is concerned the order having been passed by the Government of Punjab itself, it is not shown as to where the remedy for the petitioner lies. Rule 20 of the Rules (ibid) which is relied upon by the respondent side reads as follows:- "20. Right of appeal or representation - A member of the service aggrieved by an order passed against him under there rules, shall have a right to file as appeal within sixty days of the passing of the order, to the authority next above the authority passing the order and to the Government where the order is passed by the Department: Provided that no appeal shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or basic scale."
The perusal of the above rules would show that ''Government" is considered to be the ultimate authority where an order is passed by a departmental authority. Since in the instant case the order has been passed by the Government of Punjab (as defined in Rule 2(1)(e) of the Rules) itself, there is no higher authority provided or indicated by the rules where the petitioner could seek the remedy. The remedy of appeal thus for him has become , merely illusory. The reliance of the learned counsel for respondent No. 3 in such context upon Muhammad Khalid Mirza and 3 others v.
Lahore Development Authority and 12 others (2004 PLC (C.S.) 800), is thus inapt as in that case the representation was competent before the higher departmental authority.
6. The admitted position as per the comments filed by the Government is that rules framed under Section 140-A read with Sermon. 191 of the Punjab Local Government Ordinance 2001, called "The Punjab Local Governments District Service (Tehsil/Town . Municipal Administration Cadre) Rules, 2005' are applicable. Establishment and Composition of "Service" is taken care of by Rule 3 of these rules. The service consists of four functional units known as:- "(i) The Administrative Functional Unit.
(ii) The Finance/Accounts Functional Unit.
(iii) The Engineering Functional Unit.
(iv) The Planning Functional Unit."
As per sub-rule (3) the members of the Local Council Service, Employees of Local Government & Rural Development Department and Housing, Urban Development & Public Health Engineering .
Departments are eligible for posting and transfer in the Service in accordance with the share to be determined by the Government. There is a restrictive clause also in like form of sub-rule (4)- that- "Officers and Officials of one Functional Unit shall not be eligible for appointment to a post in any other Functional Unit." Rule 4 envisages the appointment to the Service through Initial Recruitment, promotion and transfers whereas preconditions for appointment by transfer and posting are laid down in Rule 7 According to this rule, "Appointments Dy transfer /posting' may be made from amongst person holding appointments, in the Government in Provincial Management Service APUG service, departments and service mentioned in Rule 3(3), in the same grade as that to of-the post to which appointment is to be made, subject to the persons fulfilling the conditions of appointment to the post concerned and the share of above service in the Functional Units as may be determined by the government, from time to time, it is noticeable that respondent no. 3 being a deputationist from NTC is neither member of the service nor Employee of Local Government and Rural Development > and Public Health Engineering Department nor he belongs to Provincial Management Service or APUG Service his appointment to the specified post was thus not permissible under the rules. The contention of the learned counsel for respondents that posting and transfer is prerogative of the Government and since every member of the service is liable to serve anywhere in the Province, he has no locus standi to assail the impugned order before the Court, is untenable. Rule 11 of the Rules obligates any member of the "Service" to serve anywhere in the Province, but as respondent No. 3 has firstly been posted in place of the petitioner, the consequential order of transfer of petitioner cannot be made a ground to challenge his locus standi tp maintain the petition for seeking declaration about validity of order impugned. Since it has been found on consideration of the relevant rules that respondent No; 3 cannot be posted nor can he hold the post of TMO under the rules, order Impugned is liable to be declared as ot no legal effect.
As a result, this petition is accepted declaring the order dated 17.4.2005 as illegal and of. No legal effect. No order as to costs.