' MIAN SAQIB NISAR, J.--- The petitioner, who is an Ahmadi, was promoted as Superintendent (BS- 16) in the Auqaf Organization; his promotion was subsequently recalled on 6-8-1996 on the ground that proviso to section 5(1) of ti_z Punjab Waqf Properties Ordinance, 1979 (IV of 1979) as inserted therein by Punjab Ordinance No,XIII of 1984, did not permit promotion of a non-Muslim as an officer.
Aggrieved of the above, the petitioner approached this Court in Writ Petition No,13894 of 1996, which was allowed vide order, dated 18-9-2000 after finding that the petitioner was condemned unheard.
After disposal of the said writ petition, the order dated 6-8-1996 was recalled.
2. The petitioner, vide order, dated 21-5-2001, was allowed move-over from BS-16 to BS-17 and was also granted selection grade on the same date, but again on 10-10-2001, the petitioner was put to notice that his promotion as Superintendent was illegal and vide order, dated 29-1-2002, the order of promotion of the petitioner was recalled; this was challenged by him through the noted writ petition.
3. The matter came up before the learned Single Judge in Chambers and vide judgment, dated 13- 10-2004, the writ petition was allowed primarily holder as under:--- "The submissions made by the learned counsel for the parties have been considered. It will be appropriate to reproduce the relevant extract from Article 27 of the Constitution:--- `27(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex residence or place of birth'.
' The guarantee against discrimination on the ground of religion is absolute and not subject to reasonable qualification or restriction. The exceptions to the said guarantee have been provided by the Article itself. Therefore, the proviso to section 5(1) added to the Punjab Waqf Properties Ordinance, 1979 (IV of 1979) by the Punjab Ordinance No,XIII of 1984 is repugnant to Article 27 and is thus, void by virtue of operation of Article 8 of the Constitution."
4. The respondent-Department challenged the above judgment before the Honourable Supreme Court of Pakistan in Civil Petition No,351-L of 2005, which was decided vide judgment dated 12-10- 2006 in the following terms:--- "(4) The learned Advocate Supreme Court for the respondent submitted that his contention only was that the Superintendent did not come within the purview of an officer and thus, the provisions contained in the proviso to above mentioned section 5(1) of the Waqf Properties Ordinance was not attracted in his case and that the question of the said provisions being hit by the provisions of Article 27 of the Constitution was not relevant for the disposal of the lis before the High Court. He added that he would have no objection if the impugned judgment was set aside and the matter was remanded back to the learned High Court to decide the core issue i,e, whether a Superintendent was or was not an officer in terms of the provisions of the above-mentioned Ordinance and the Rules of 1994.
(5) In this view of the matter, with the consent of the parties, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Lahore High Court dated 13-10-2004 passed in Writ Petition No,2398 of 2002 is set aside and as a further result whereof the matter is remanded back to the learned High Court for decision of the same afresh on its merits in accordance with law."
5. The learned counsel for the petitioner has only restricted his submission to the proposition, if the petitioner is an officer or otherwise. In this regard, it is argued that under the provisions of section 25 of the Punjab Waqf Properties Ordinance, 1979 ("the Ordinance"), the Government is empowered to frame rules for the purpose of carrying into effect the provisions of the Ordinance, particularly prescribing the powers and the duties of the officers appointed thereunder; besides regulating the manner in which schemes for the administration and development of Waqf properties shall be prepared. In such legal backdrop, referring to the Punjab Auqaf Organization (Appointment and Conditions of Service) Rules, 1994 ("the Rules"), which have been framed under section 25 of the Ordinance, it is submitted that as per Rule 2(e) thereof, for the purposes of the above, "Functional Unit" has to be constituted, which means a group of posts or a part of such group sanctioned as a separate unit in or under the Organization; in pursuance of the above, two units have been so established, one the "Administration and Management" and the Superintendent does not fall within this category; the other unit is for "Ministerial Establishment and other Miscellaneous Posts", in which the post of Superintendent figures at serial No,3; on account of this clear demarcation, a Superintendent is conceived to be ministerial post as against the administrative.
6. Conversely, the learned counsel for the respondent by referring to Rule 15 of the Rules has argued that conduct of a member of the service shall be regulated by the Government Servants (Conduct) Rules, 1966 as amended from time to time or such other rules as may be applicable to Government servants, thus according to Rule 6 of the Punjab Civil Servants (Change in Nomenclature of Service and Abolition of Classes) Rules, 1974 ("Rules of 1974"), for the purpose of application of any existing rules, order or instruction to a class or to a post as Gazetted or Non- Gazetted shall be construed as reference to the corresponding Grade as specified in the table, and the post of Grade-16 as that of a Superintendent is mentioned therein. Besides the above it is submitted that because the post of manager in Grade-16 in the Functional Unit of "Administration and Management" is interchangeable with Superintendent of the same grade, therefore, the post of the Superintendent should also be considered to be that of an officer.
7. Heard. The "Officer" has neither been defined in the Ordinance nor in the Rules. Therefore, it is on the basis of the provisions of subsection 2(e) of section 25 of the Ordinance, read with the Rules that it should be ascertained as to what is the status of the Superintendent in the Auqaf Organization. It is settled law that while construing the provisions of a statute the Courts shall apply the rule of interpretation, which makes it purposeful. The obvious purpose of creating the aforementioned two functional units in the Organization is that, one is meant for the Administration and the Management thereof clearly envisaging the posts and the people who shall be responsible for its operation, who shall hold an office of trust, the authority and command. While, the other unit from its very nomenclature relates to the posts/people who shall perform functions on instructions instead of their own discretion or the judgment, therefore, the later category cannot be termed to be the officers, in terms of the relevant law.
8 .For the submission of the respondent's counsel that on account of Rule 15 of the Rules read with Rules of 1974 as a Superintendent is a gazetted officer, therefore, the post should accordingly be construed, suffice it to say that where a statute itself provides an answer to a proposition, it should not be resolved on the basis of another legislation, D to which reference has been made in the relevant law. A Superintendent may be a gazetted officer OK, as per the Rules of 1974, but it shall be only germane in context to that law alone, whereas the issue in the E present matter is whether he is an officer or not under the Special Law, and the answer is provided above.
9. As regards the argument of the learned counsel for the respondent that some posts falling within the category in "Administration and Management" are inter-transferable with the post of Superintendent, therefore, the post of Superintendent should also be deemed to be the post of officer, is not well-founded on account of the clear demarcation and distinction of the Administrative and Ministerial establishment. The only reason, that a Superintendent might ever be transferred to such a post, would not mean that the post of a Superintendent, while the person is functioning in the ministerial unit, necessarily attains the character of an officer.
' In the light of above, by allowing this petition, the impugned order recalling the petitioner's promotion is hereby declared to be illegal, unlawful and without jurisdiction.