This judgment shall decide Writ Petitions Nos. 5946/04, 6332/04, 6018/04 and 216/05 as common questions are involved.
2. The writ petitioners in all these cases were appointed as Naib Qasids in the erstwhile Zila Council, Khanewal by the competent Authority. While they were, so performing their duties, the Punjab Local Government Ordinance, 2001, was promulgated. All the writ petitioners were transferred and allocated to the various Union Councils as per details given in these writ petitions. All of them were pronoted as Secretaries of the respective Union Council by the Union Nazims after being recommended by the. Selection Committees. All these wit petitioners feel aggrieved of letters/orders dated 15.10.2004 and 29.10.2004 issued to the Union Nazims calling upon them to review the said promotions and to recover the emoluments paid.
3. Mr. Qamar-uz-Zaman Butt, Advocate/learned counsel for the petitioners in all these cases contends that the said impugned orders are without lawful authority inasmuch as under the Rules framed by the Provincial Government under the said Punjab Local Government Ordinance, 2001, the Union Nazim is the competent Authority in the matter of appointment and promotion to posts in BS-1 to 5 and the post of Secretary Union Council falls in the said cadre. According to him, the Executive Officers cannot over ride the said statutory Rules. Learned AAG has tried to support the impugned orders. Mr. Jawad Shahid, Advocate/learned counsel for the Respondent No. 2 relies on a Provincial Government circular dated 5.1.2004 to urge that notwithstanding the said Rules, the matter of promotion of the employees of erstwhile Zila Councils is to be decided by District/City District Government. According to him, the letter constitutes Departmental Regulations or instructions and is at part with a statutory Rule.
4. I have given some thought to the respective contentions of the learned counsel for the parties.
The facts are admitted. The petitioners-Naib Qasids were pronoted as Secretaries Union Councils which post is in BPS-5. Now, admittedly, the Punjab Local Councils Servants (Service) Rules, 1997 Govern the matter as amended with reference to the new set up introduced in the Punjab Local Government Ordinance, 2001. Under Rule 4 (v), the appointment, promotion, suspension and punishment (including dismissal, compulsory retirement, reduction in rank and removal from service) of servants of Local Councils or servants of the Union Administration shall be made by the Union Nazim. This is subject to only one condition that, the Union Nazim shall make the appointment or promotion on the recommendation of a Selection Committee specified in the said Rule 4 which comprises of the Union Nazim and the senior most Secretary of the Union Administration.
5. There is no denial that promotion on all the writ petitioners as Secretary Union Council has been made by the concerned Union Nazims on the recommendation of the said Selection Committee.
6. Now according to the said circular dated 5.1.2004 being relied upon by the learned counsel for the respondent the promotion, move over and grant of selection scale cases for the employees of erstwhile Zila Council shall be continued to be decided at the District/City District Government.
7. Now the said statutory provisions had been made by way of amendment in the Punjab Local Councils Servants (Service) Rules, 1997, by the Governor of Punjab, in exercise of powers conferred upon him under Section 191 read with Section 196 of the Punjab Local Government Ordinance, 2001.
8. To my mind, the said statutory Rules, framed, in exercise of powers conferred by statute by the competent Authority cannot be set at naught by the executive by issuing the said circular. Even otherwise, there is not even allegation that any of the petitioners was not eligible to be pronoted to the said post or that any right of any other servant of the respective Union Council has been infringed. All these writ petitions are accordingly allowed and the impugned orders issued by the Respondent No. 2 are declared to be without lawful authority and are set aside. No orders as to costs.