' SHAHID ANWAR BAJWA, J.--- Through this judgment we propose to decide Constitution Petitions Nos.D-2462 of 2009, D-2568 of 2009, D-2682 of 2009, D-2723 of 2009, D-1428 of 2010, D-473 of 2010, D-852 of 2010 and D-100 of 2010 as common questions of law and facts arise in all these petitions.
Petitioners in all these Petitions were taken in employment of various Union Councils as Junior Clerks. Subsequently vide order No, FD(SR-IV)2-70/2007 dated 17-8-2007, with effect from 1-7-2007 post of Junior clerk was upgraded to BS-7. They were then posted as Officiating Secretaries in various Union Councils. The post of Secretary is also a BS-7 post. However, as stated above, the petitioners were posted as Officiating Secretaries.
2. On April 22, 2009 Notification No,SOI/S&GAD/6/25/2009 was issued by the Government of Sindh.
Notification reads as under:--- "Subject: Posting of officers on OPS basis.
' I am directed to refer to the subject noted above and to state that Provincial Cabinet in its meeting held on 29-4-2008 had unanimously decided to cancel the postings on OPS basis. Only two departments were exempted from the ban i.e, District Administration and Police. Accordingly, all the Administrative Departments were requested to revert the officers to their original posts.
(2) However, it has been noted with serious concern that the directives of the Chief Minister Sindh have fallen on deaf ears, as some departments are still continuing with such practice in utter disregard of Cabinet decision. As such, Competent Authority has desired that these postings should be stopped forthwith. Any deviation from Government orders will be viewed seriously and tantamount to (sic) defy the orders of the Authority.
(3) All the concerned are, therefore, directed to adhere to Government instructions strictly and furnish the detailed report of all such orders made on OPS basis after the decision of above referred Cabinet meeting along with justification for making these postings on OPS basis, so that consolidated report in this regard may be furnished to the Chief Minister Sindh for his perusal/orders as desired by him."
3. In consequence of Notification dated April 22nd, 2009, on October 23rd, 2009 an order was issued wherein it was stated that in pursuance of notification dated 22-4-2009 and with the approval of the competent authority, Officiating Secretaries of Union Councils are hereby transferred and repatriated to their original/parent departments with immediate effect. This order was passed by Sindh Local Government. Board and was issued under the signatures of Secretary to the Government of Sindh. These Constitution Petitions have been filed with a prayer that the order dated 22-4-2009 and the consequent repatriation orders passed by the Sindh Local Government Board be declared as void ab initio, unlawful and not binding upon the petitioners.
4. Mr. M.M. Aqil Awan, learned counsel for the petitioners made the following submissions:---
(1) While referring to the Notification dated April 22, 2009 learned counsel contended that this is applicable only to those transferred on OPS (Own Pay and Scale) basis. Learned counsel submitted that concept of OPS is that if a person in BPS-7 is posted on a post of, say, BPS-9 in an officiating capacity then he is said to be transferred and posted on OPS basis because he is drawing salary of his own pay and scale. Learned counsel contended that in present petitions all the petitioners were in BS-7 as Junior Clerks and were posted as Officiating Secretaries which again is post of BS-7.
Therefore, notification has no applicability to the case of the petitioners.
(2) Even the notification dated April 22, 2009 exempted the District Administration from the scope of the notification. Learned counsel contended that District Government and District Administration are synonymous terms.
(3) Petitioners fall in BPS-7, which scale is of clerical cadre. Notification dated 22-4-2009 is only applicable to officers.
4. While relying upon Fazal Ahmed Samtio v. Province of Sindh and others 2010 PLC (C.S.) 215, learned counsel submitted that employees of Union Councils as well as other persons governed by the Sindh Councils Unified Grades Service Rules, 1982 are not civil servants and therefore, neither the Provincial Cabinet nor the Provincial Government has any authority in respect; of employees of Local Government Institutions. Learned counsel submitted that such authority has to be found within the provisions of the Sindh Local Government Ordinance, 2001. In this regard learned counsel relied upon Circular dated September 9th, 1986. The entire circular reads as under:- "No, SLGB/SCUG/CAO/LO/OSD/364/86/3726 Karachi dated the 9th September, 1986.
Circular ' Consequent upon amendment in Sindh Councils Unified Grades Service Rules, 1982, notified vide No,SLGB/SCUG/C AO/LW OSD/364/86/652, dated 12-2-1986 incorporating BS-6 in the administrative branch of the services, the Government of Sindh are pleased to declare that Secretaries of Union Councils shall be deemed to be members of Sindh Councils Unified Grades Service with effect from 1-7-1961."
5. Learned counsel referred to the comments filed by the respondent No,4 and submitted that it is stated in the comments by the respondent that power of appointment as Secretary under the rules is vested with the Government/ Sindh Local Government Board. Learned counsel submitted that although it is stated that it is a power vested under the rules but no such rules have been pointed out. Learned counsel referred to section 2(xxxvii) of the Sindh Local Government Ordinance, 2000 to contend that Union Council Administration includes the Nazim, Naib Nazim, Union Secretaries and other Union employees, and submitted that neither' Sindh Government nor Sindh Local Government Board is competent authority. He submitted that competent authority are the Administrators.
6. While concluding learned counsel submitted that the petitioners have a right to remain Secretaries because they are the senior most and are experienced hands. He submitted that in spite of advertisement in 2005 no appointment as Secretaries has yet been made. Another advertisement was placed in newspapers in 2008 and the results are with the Provincial Government and for reasons that have not been disclosed so far results have not been declared.
Therefore till regular persons are appointed, petitioners may be allowed to continue.
7. Messrs Shamda B. Changan: and Muhammad A shad Tanoli, Advocates adopted arguments of Mr. M.M. Aqil Awan.
8. Mr. Adnan Karim, learned A.A.-G. Also relied upon Fazal Ahmed Samtio's case to contend that the parent department of the petitioners is the Sindh Local Government Board. Learned A.A.-G. Referred to Rule 11(d) of Sindh Councils Unified Grades Rules, 1982, to contend that the competent authority is the Sindh Local Government Board. Learned A.A.-G. Also referred to section 196 of the Sindh Local Government Ordinance, to contend that the Sindh Local Government Board still continues to function. He also referred to Rule 3 of the Sindh Local Government (Taluka/Town Municipality Administration/ Union Administration) (APT) Rules, 2001 to contend that post of Secretary in BS-7 does not fall within the purview of the Administrator or the Union Council Nazim. Therefore, Sindh Local Government Board is the competent authority. Learned A.A.-G. Further submitted that the petitioners were never appointed as Secretaries and therefore they have no right to claim to be retained as Secretaries. In this regard, learned A.A.-G. Relied upon Peer Muhammad v. Government of Balochistan through Chief Secretary and others, 2007 SCMR 54 and Secretary to Government of Punjab, Health Department Lahore and others v. Dr. Abida Iqbal and another, 2009 PLC (C.S.) 431.
9. Mr. Ahmed Pirzada, learned counsel for Secretary Sindh Local Government Department, adapted arguments of Mr. Adnan Karim. He however, referred to Rules 4 and 11 of Sindh Councils Unified Grades Service Rules, 1982 and submitted that there is some conflict between these rules (i.e, Rules of 1982) and the Sindh Local Government (Taluka/Town Municipal Administration/ Union Administration A.P.T.) Rules, 2001.
10. We have considered the arguments submitted by the learned counsel and have also gone through the record as well as case law cited at the Bar.
11. The Sindh Councils Unified Grades Service Rules, 1982, were framed in pursuance of the powers, granted by the Sindh Local Government Ordinance, 1979. Although the Sindh Local Government Ordinance, 1979, was repealed by the Sindh Local Government Ordinance, 2001, however, by virtue of section 196(2) of the Ordinance, 2001, the Rules made under the Ordinance of 1979, were saved.
This was also held by a Division Bench of this Court in Fazal Ahmed Samito's case (supra).
12. Rule 11 of 1982 rules which dealt with the powers of transfer provides as under:--- "11 Power of transfer: The members of the service shall be liable to transfer from one council to another council in the following manner:---
(a) in the case of members of the service in (Basic Scale) 19 and above by the Chief Secretary;
(b) in the case of members of the service in (Basic Scale) 17 and 18 by the Secretary to Government of Sindh, Housing Town Planning, Local Government and Rural Development Department, subject to the condition that transfer of a member of the service in (Basic Scale) 18 before completion of two years of his existing posting shall be made with the approval of the Chief Secretary;
(c) in the case of members of the service in Basic Scale) 16 by the Additional Secretary (Local Government), Housing, Town Planning, Local Government and Rural Development Department; and
(d) in the case of members of the service below (Basic Scale) 16 by the Secretary, Sindh Local Government Board".
13. Since it was contended by Mr. Ahmed Pirzada that Rule 11 of the Sindh Councils Unified Grades Service Rules, 1982, is in conflict with the Sindh Local Government (Taluka/Town Municipal Administration/Union Administration A.P.T.) Rules, 2001, and particularly Rule 4 thereof, it may be relevant to reproduce these rules. Rules 3 and 4 of the Rules of 1982 are as under:--- "3. Composition of the service: (1) The service shall consist of the following branches; namely:---
(a) Administrative Branch;
(b) Engineering Branch;
(c) Accounts/Audit Branch;
(d) Medical Branch including Health sub-branch; and
(e) Any other branch as may be specified by Gcvernment from time to time.
(2) The branches may comprise the following (basic scales)
(a) Administrative Branch Basic Scale 6 to 19)
(b) Engineering Branch (Basic Scale) 8 to 20
(c) Accounts/Audit Branch (Basic Scale) 8 to 19
(d) Medical Branch (Basic Scale) 11 to 20
(e) Health sub-branch (Basic Scale) 17 to 20
(3) Each Branch may have a sub-branch
(4) Members of one branch or sub-branch shall not be eligible for transfer to the post in another br sub-branch.
(4) Appointment: (1) Subject to any general or specific directions as may be issued from time to time by Government, appointments to post in the service shall be made on the recommendations of the Board:---
(a) in the case of posts in (Basic Scale) 19 and above by the Chief Minister (MLA);
(b) in the case of post in (Basic Scale) 18 and above by the Chief Secretary;
(c) in the case of posts in (Basic Scale) 17 and above by the Minister Incharge;
(d) in the case of posts in (Basic Scale) 16 and above by the Secretary to Government of Sindh, Housing Town Planning, Local Government and Rural Development Department;
(e) in the case of posts below (Basic Scale) 16 by the Additional Secretary (Local Government)
Housing, Town Planning, Local Government and Rural Development Department.
(2) in the case of initial recruitment the Board shall advertise the posts together with the terms and conditions of appointment thereto, and make its recommendations after such examination or test and interview as may be conducted by it.
14. Rules 3 and 4 of Rules of 2001 are as under:---
(3) Exclusive powers of Nazim: Subject to the provision in the budget the Nazim shall have the powers to:---
(a) Make appointment, transfer or promotion of; or grant leave to, or impose any penalty on the servants of respective TMA/UA other than the posts -of TMO and TO posts of decentralized offices, SCUG employees and any other post so designated
(b) Basic Pay Scale 16 and 17 in the case of Karachi Towns Hyderabad, Latifabad, Qasimabad, Sukkur, Mirpurkhas and Larkana Talukas.
(ii) Basic Pay Scales 11 to 15 in case of other District Head Quarter Talukas TMA.
(iii) Basic Pay Scale 5 to 10 in case of all other TMAs.
(iv) Basic Pay Scale 1 to 5 in case of Union Administration.
4. Powers of T.M.O. Subject to overall control and supervision of the Nazim, TMO shall have the powers to:--- (a)(i) Make appointments, transfer or promotion of, or grant leave to or impose any penalty on the officers and servants of the Council except posts of TMO and TOs and posts of decentralized posts, SCUG posts and any other post so designated by the Government through notification.
(ii) BPS-15 and below in Karachi Towns, Hyderabad, Latifabad, Qasimabad, Sukkur, Mirpurkhas and Larkana Talukas.
(iii) BPS-1 to 10 in the case of all other TMAs.
(b) Subject to over all control and supervision of the Nazim and TMO, the TOs shall exercise the following administrative powers:---
(i) Town Officer (infrastructure):--
(a) To make appointments promotions, or grant leave to sanitation staff from BPS-1 to BPS-4.
(ii) Other Town Officers:--
(a) To grant leave to the staff working under their respective control.
15. A perusal of Rules of 1982, indicates that in these rules, power of transfer of employees in Basic Scale 16 and below is vested with the Sindh Local Government Board. On the other hand under the Rules of 2001 power is conferred upon Nazim. Rules 3 and 4 of Rules of 2001 are not applicable to posts falling within the scope of the Rules of 1982. Therefore, in respect of employees to whom Rules of 1982 are applicable, Rules of 2001 have no applicability. Therefore, contention of Mr. Pirzada that there is conflict between Rules of 1982 and Rules of 2001, at least to the extent of transfer and at least to the extent of employees covered under the Rules of 1982, does not appear to be correct.
16. Contention of Mr. Adnan Karim was that under the proviso to section 196(2), Sindh Local Government Board continues to function. The proviso is in the following words:--- ' 'Provided that, until otherwise decided by the Government, the Local Government Boards established under the Sindh Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local Council Service shall continue to function".
17. In the case of Muslim Commercial Bank Ltd. And others v. Mahmood Ahmed Butt and others, 1997 PLC 550, which was decided by the Hon'able Supreme Court of Pakistan, facts were that in the case of a Cashier, under the rules of appellant bank, competent authority was the Zonal Chief and not the President or Senior Executive Vice-President at the Head Office. Respondent employee had been dismissed by Zonal Chief merely at the direction of hierarchy at head office. The said action of dismissal was set aside ultimately by the honourable Supreme Court because the rules conferred a power on Zonal Chief and not on the President/Senior Executive Vice-President and therefore, the order of dismissal from service passed by the Zonal Chief being purely a mechanical exercise of power was held to be without lawful authority. This was followed by a Division Bench of Lahore High Court in the case of Abdul Jabbar v. Punjab Labour Appellate Tribunal, Lahore and 2 others, 2001 PLC 341, by holding that if a person is not competent to impose a penalty on an employee, such disability cannot be removed by authorizing him under a power of attorney to exercise such powers. In Muslim Commercial Bank Ltd. v. Punjab Labour Appellate Tribunal, Lahore and 2 others, 1989 PLC 206 it was held that if an action is taken by a person not competent to do so, it will be nullity in the eyes of law. Same is the position in case of Muslim Commercial Bank Ltd.
Karachi and 2 others v. Punjab Labour Appellate Tribunal Lahore and 2 others, 1994 PLC 38.
18. Ratio of these judgments seems to be that where rules or any other legal instrument, confers a particular power, the authority can exercise the power by applying its own independent mind. If the competent authority acts merely in a mechanical manner on a direction given by a superior authority, such an act by competent authority would not be a valid act in law and would be without lawful authority and of no legal effect.
19. In the order dated 23-10-2009 what is done by the Sindh Local Government Board is that it merely said that "in pursuance of SGA&CD Notification No,SO-I/S&GAD/6/25/2009 dated 22-4- 2009, and with the approval of the competent authority". No approval of competent authority has been placed on record. Even reading of the order, dated 23-10-2009 indicates that Sindh Local Government Board has acted mechanically, merely following the order dated April 22, 2009, without applying its own independent mind and therefore it appears that the Local Government Board did not make a considered and conscious decision. Therefore on this score alone notification dated 23-10-2009 cannot be sustained.
20. Sindh Local Government Ordinance, 2001 was promulgated on August 6, 2001 and in its preamble it was stated that it was deemed expedient "to devolve political power and decentralize administrative and financial authority to accountable Local Governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grassroots level." Local Government was defined in section 2(xvi) as under:--- "Local Government includes. (a) District Government or a City District Government and Zila Council;
(b) a Taluka Municipal Administration and Taluka Council;
(c) a Town Municipal Administration and Town Council; and
(d) a Union Administration and Union Council; ' Thereafter the Ordinance provides for various powers for the Provincial Government such as delimitation of the Talukas and Districts (section 7) declaring that a Taluka and Talukas within one or more adjoining District as a City District (section 8) declaring a whole number of contiguous Unions to be a Town (Section 9), alteration of Local Areas (section 11) etc. Under section 127, the District Government is required to carry out its decentralised functions in accordance with the provisions of the Ordinance and the rules made thereunder. However subsection (3) of section 127 confers power on the Provincial Government to provide guidelines and render advice for promoting economic social and environmental security of the Province. Section 128 says that Chief Executive of the Province may by himself or through any officer specifically authorized by him, issue directives in public interest to a Nazim for implementation.
21. The above survey of the provisions indicates that intention behind promulgation of the Sindh Local Government Ordinance, 2001, and it is stated in the preamble itself, was to devolve political power and decentralize administrative and financial authority to Local Governments. Obviously no devolution of administrative authority can be held to have taken plea if the Local Government authority is not competent to transfer its own employees. In section 127 power is available with the government "to provide guideline and render advice for promoting economic, social and environmental security of the Province". No such intention can be made out either by the words used in the notification dated 22-4-2009 or in the order dated 23-10-2009 or by necessary intendment. Lastly one can go even to section 128 which confers powers on the Chief Minister of the Province to issue direction in the public interest for implementation. No such directions have been issued to any Nazim or all the Nazims in the notification dated 22-4-2009. Even otherwise the notification is only in respect of those posted on OPS basis and Mr. Aqil Awan appears to be correct in arguing that OPS has no applicability where the two posted are of the same scale and grade. At least learned A.A.-G. Has not advanced any arguments for the contrary.
22. The law does not need any authority that all the public power must be exercised in the best possible interest and for the most possible furtherance of the objectives for which the power has been conferred Such exercise of power while not being whimsical or capricious must also be reasonable and logical. In the present case hundreds if not thousands of Junior Clerks who had been posted as Officiating Secretaries and who have been working as such for last more than half a' decade or so, have been ordered to be returned and repatriated. There is no word that any person has been selected through a transparent process for posting as permanent secretaries despite the posts having been advertised twice. There is no word whatsoever that the positions from which these hundreds of persons came are still lying vacant. If they are lying vacant there is no word that since positions have remained vacant for such a long time, there has been or has not been any adverse effect on performance of Local Government Institutions and therefore what was needed was to fill them rather than abolish them or vice versa. And if the positions are not lying vacant because replacement persons have been recruited as Junior Clerks, there is no word as to what would be fate of such employees. And last but not the least, although it has been advertised twice, Secretaries have not been recruited. All these factors should have been considered before blindly applying the order dated 22-4-2009 to the Officiating Secretaries. Even on this score the order cannot be sustained.
22-A. A perusal of notification dated 22-4-2009 does not make out that it is a direction under section 128 of the Sind Local Government Ordinance. In fact para.2 of the notification indicates that it is only "Administrative Departments" which have been directed to revert employees to their original positions. Local Government institutions are not administrative departments of the Provincial Government. Therefore it does not seem that intention of notification dated 22-4-2009 was to apply it to lowly paid employees of Union Councils etc. Therefore, we are of the view that the notification dated 22-4-2009 is not applicable to Local Government employees.
23. In view of the conclusion that we have reached above, we need not decide other submissions made by Mr. M.M. Aqil Awan. As far as case-law relied upon Mr. Adnan Karim is concerned, it is on the point that a deputationist or person working in officiating capacity has no right or lien on the post being occupied by him for the time being. There is no cavil with this proposition. However it is not the case of the petitioners that they have lien on the posts of Officiating Secretaries. In fact Mr. Aqil Awan stated that since advertisements have been placed twice for recruitment of secretaries, these officiating secretaries be allowed to continue till permanent secretaries are recruited and posted. Their case is that notification dated 22-4-2009 is firstly not applicable to them and secondly is not within the scope of the powers conferred upon Provincial Government by the Ordinance of 2001 and consequently the order dated 23-10-2009 is without lawful authority and of no legal effect. We exercising judicial restraint, have not entered into discussion whether the competent authority for transfer is the Local Government Board or the Administrators. We leave it for determining in an appropriate case as this petition can be disposed of and decided without deciding this question.
24. Consequently we hold that the notification dated 22-4-2009 is not applicable to Local Government Employees. Therefore, order dated 23-10-2009 having been passed without due consideration and in a mechanical manner, and stated to be in consequence of notification dated 22-4-2009 which notification for reasons detailed above, is not applicable to Local Government employees is declared as without lawful authority and of no legal effect. The order is consequently set aside. The petitions are disposed of in the above terms. Listed application are also disposal of.