ABDUS SATTAR ASGHAR, J. --- Tanveer Hussain, Auctioneer Market Committee, Chishtian has invoked the Constitutional jurisdiction of this Court to impugn the order dated 16.3.2011 passed by Director of Agriculture (Economics & Marketing), Punjab, Lahore (respondent No 1) whereby petitioner's promotion as. Auctioneer vide order dated 6.3.2010 has been set aside. He has also assailed the order dated 28.6.2011 passed by respondent No. 1 whereby petitioner's representation against the order dated 16.3.2011 has been rejected.
2. Succinctly facts leading to this writ petition are that petitioner was appointed as Chowkidar (BS- 1) in Market Committee, Chishtian on temporary basis vide order dated 4.11.1997 and his services were regularized vide order dated 8.9.1999. Extra Assistant Director of Agriculture (Economics & Marketing), Bahawalnagar vide letter dated 25.2.2010 to the Deputy Secretary, Government of Punjab Agriculture Department, Market Wing, Lahore recommended petitioner's promotion as Auctioneer against a vacant post lying in Market Committee, Bahawalnagar. Contents of said letter reads below:-- "OFFICE OF THE EXTRA ASSISTANT,DIRECTOR OF AGRICULTURE, (ECONOMICS AND MARKETING), BAHAWALNAGAR.
No. 185/E&M/10 Dated: 25.2.2010.
To, The Deputy Secretary, Government of Punjab, Agriculture Department, Marketing Wing, Lahore.
SUBJECT: PROMOTION OF MR. TANVEER HUSSAIN, CHOWKIDAR AS AUCTIONEER.
Whereas, Mr. Tanveer Hussain working as Chowkidar in Market Committee, Chishtian is senior according to seniority list of Chowkidars, Naib Qasids, etc. In District Bahawalnagar, therefore, he may be considered as the senior most employees from BS-1 and has entitlement for the promotion as Auctioneer. It is submitted that one post of Auctioneer is lying vacant in Market Committee, Bahawalnagar. The seniority list and other relevant documents are attached herewith.
Hence, your honour being the senior member of Departmental Promotion Committee constituted by the Government of Punjab Agriculture Department at District level; his case for promotion as Auctioneer is attached for approval please.
Sd/- Extra Assistant Director of Agriculture, (Economics & Marketing), Bahawalnagar."
3. Deputy Secretary Government of Punjab, Agriculture Department, Marketing Wing, Lahore approved the recommendation as under:-- "Original record seen. Fit for promotion. Pl. Proceed further accordingly.
Sd/- Deputy Secretary to Government of the Punjab, Agriculture Marketing Department."
4. Consequently, petitioner's case for promotion was placed before the Departmental Promotion Committee comprising Deputy Secretary Agriculture Marketing Punjab, Lahore, Extra Assistant Director of Agriculture (E&M), Bahawalnagar and Administrator, Market Committee, Bahawalnagar.
The above-said Departmental Promotion Committee in its meeting held on 4.3.2010 recommended the petitioner's promotion as Auctioneer pursuant to the recommendations of the Departmental Promotion Committee. The decision of the Departmental Promotion Committee was conveyed to the Administrator, Market Committee, Bahawalnagar, who vide order dated 6.3.2010 promoted the petitioner as Auctioneer (BS-5) against vacant post of Auctioneer (BS-5) in Market Committee, Bahawalnagar on regular basis with immediate effect. The petitioner after taking the charge of the post was working as Auctioneer when served with a show-cause notice dated 28.1.2011 issued by respondent No. 1, which reads below:-- "No 2132-33/Estt/E&M/11 Dated Lahore the: 28.1.2011.
To
1. Mr. Abdul Jabbar, Sub-Inspector, Market Committee, Chishtian.
2. Mr. Tanveer Hussain, Auctioneer, Market Committee, Bahawalnagar.
Subject: SHOW-CAUSE NOTICE. On the receipt of complaint against you filed by Mr. Shehzad Akhtar.
S/o Noor Hussain, Ex-Chowkidar, Market Committee, Chishtian. Mr. Ghulam Rasool Abid, Extra Assistant Director of Agriculture (E&M), Vehari who was deputed for enquiry vide this office letter No. 29416/Estt/E&M/10, dated 15.11.2010 has furnished his report.
According to the enquiry report there are sufficient grounds to proceed against you under Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
However, before taking any action in this regards you are hereby directed to appear before the undersigned on 2.2.2011 at 11.00 a.m. Alongwith information/documents in your support if any, so that the case may be decided on merit.
Sd/- DIRECTOR OF AGRICULTURE, (ECONOMIC & MARKETING) PUNJAB, LAHORE."
5. Consequently respondent No. 1 passed the impugned order dated 16.3.2011 against the petitioner, which reads below:-- "DIRECTORATE OF AGRICULTURE, (ECONOMIC & MARKETING), PUNJAB, LAHORE. ORDER Whereas, on a complaint filed by Mr. Shehzad Akhtar S/o Noor Hussain Ex-Chowkidar, Market Committee, Chishtian against staff of Market Committee, Chishtian, Mr. Ghulam Rasool Abid, Extra Assistant Director of Agriculture (E&M), Vehari was appointed to enquire the matter on the complaint and submit report to this office.
WHEREAS, the Extra Assistant Director of Agriculture (E&M), Vehari vide his letter No. 632/E&M/10, dated 10.12.2010 has submitted his report to this office and recommended that Mr. Tanveer Hussain cannot be promoted as Auctioneer, because as per PAPM(G) Rules, 1979, the appointment of the Auctioneer (BS-5) is to be made by initial recruitment. He recommended to demote him against his original post of Chowkidar in Market Committee, Chishtian.
WHEREAS, Mr. Tanveer Hussain, Auctioneer, Market Committee, Chishtian was afforded an opportunity Of personal hearing on 2.2.2011 and 9.2.2011. He appeared before the undersigned for personal hearing and his relevant record was examined thoroughly.
AND WHEREAS, after perusal of the enquiry report and other relevant record placed before me, I have come to the conclusion that Mr. Tanveer Hussain cannot be promoted as Auctioneer as per PAPM(G) Rules, 1979.
AND WHEREAS the undersigned agreed with the recommendation of the enquiry officer as he has recommended for demolition him at his original post of Chowkidar.
NOW THEREFORE, I Director of Agriculture (Economics & Marketing), Punjab, Lahore/authority in exercise of the powers Vested under Section 27(2) of PAPM Ordinance, 1978, delegated to me vide Notification No. PDNIII1/82(Part-III), dated 6.8.1975 set aisde the illegal promotion order of Mr. Tanveer Hussain from Chowkidar to Auctioneer issued by the Administrator, Market Committee, Chishtian vide No. 1021-24, dated 6.3.2010 being in violation of the rule.
Sd/- DIRECTOR OF AGRICULTURE, (ECONOMICS & MARKETING), PUNJAB, LAHORE."
6. Being aggrieved of the above-quoted order, the petitioner lodged a representation to respondent No. 1, which was also dismissed vide order dated 28.6.2011, which reads below:-- "DIRECTORATE OF AGRICULTURE, (ECONOMICS & MARKETING), PUNJAB, LAHORE. ORDER WHEREAS, in compliance of the Court order dated 8.4.2011 in Writ Petition No. 1850/2011/BWP, the case of the petitioner namely Mr. Tanveer Hussain was examined and record was also checked.
WHEREAS, Mr. Tanveer Hussain was appointed as Chowkidar (BS-1) in Market Committee, Chishtian vide order No. 1046-47, dated 4.11.1997. He was illegally promoted to the post of Auctioneer (BS-5) by the Market Committee, Chishtian vide order No. 1021/24/MKT/2010, dated 6.3.2010, violating the provision of Rule 70(2)(4) Schedule B of PAPM (General) Rules, 1979.
WHEREAS, in a complaint filed by Mr. Shahzad Akhtar S/o Noor Hussain, the matter was examined regarding illegal promotion of the petitioner namely Tanveer Hussain. After inquiry in the subject- matter and affording the personal hearing to the petitioner, the competent authority set aside the order dated 16.3.2011 of Mr. Tanveer Hussain, Chowkidar to Auctioneer issued by the then Administrator, Market Committee, Chishtian on 6.3.2010 being in violation of rule.
NOW THEREFORE, I Ch. Bashir Ahmad, Director of Agriculture (E&M), Punjab/Authority in exercise of powers conferred upon me hereby reject the representation of the petitioner and uphold the earlier order dated 16.3.2010.
Sd/- DIRECTOR OF AGRICULTURE, (ECONOMICS & MARKETING), PUNJAB, LAHORE."
7. Respondents in their parawise comments at the outset has contended that employees of the Market Committee are public servant as envisaged under Section 17 of the Punjab Agriculture Produce Markets Ordinance, 1979 (hereinafter to be referred Ordinance), therefore, petitioner cannot invoke the Constitutional jurisdiction of this Court under Article 199 without availing adequate remedy before the Punjab Service Tribunal. On facts it is contended that as per Rules appointment of Auctioneer is to be made by initial recruitment and that promotion order of the petitioner, therefore, being violative to Rule 70(2)(4) of Schedule-B of the Punjab Agriculture Produce Markets (General) Rules, 1979 was illegal, without lawful authority and thus rightly set aside by the Competent Authority i.e. Respondent No. 1 through impugned order; that representation lodged by petitioner having no merit was also dismissed in accordance with law.
8. Learned counsel for the petitioner has argued th'at he is not a civil servant as defined in Section 2-A of the Service Tribunal Act, 1973 and Section 2 of the Civil Servants Act, 1973; that an employee of a market committee being a public servant within the meaning of Section 21 of the Pakistan Penal Code as contemplated under Section 17 of the Ordinance does not render him a civil servant as defined under Section 2 of the Civil Servants Act, 1973; that petitioner's promotion ordered by competent authority after fulfilling all the codal formalities could not be terminated on the flimsy ground that the said post had to be filled in through initial recruitment under the Rules. He has taken reliance upon Province of the Punjab through Secretary, Agriculture, Government of Punjab and others Vs. Zulfiqar All (2006 SCMR 678).
9. On the other hand learned AAG assisted by learned counsel for respondent No. 4 reiterated respondents' contentions as raised in their parawise comments.
10. I have given patient hearing to learned counsel for the parties, learned AAG and gone through the record.
11. As regards the maintenance of writ petition in this case suffice to say that it has already been settled that employees of the Market Committee, a corporate body, cannot be termed as employees of the Provincial Government nor they can be said to be held a post in connection with affairs of the Province, therefore, they are neither members of local council service nor a civil servant and cannot invoke the jurisdiction of Service Tribunal. Therefore, Article 212 of the Constitution does not create' any bar for the employees of Market Committee to invoke the Constitutional jurisdiction of this Court under Article 199. Instant writ petition is thus maintainable.
Reliance is made upon Majid Ahmed Vs. Chairman, Market Committee, Baddu Malhi and 2 others (1986 PLC (C.S) 474) and Qazi Akhtar A.I, Secretary, Market Committee Bhalwal, District Sargodha Vs. Director of Agriculture (Economics & Marketing), Punjab, etc. (2001 TD (Service) 56).
12. It is evident on the record that petitioner was duly promoted as Auctioneer (BS-5) with the approval of Deputy Secretary (Agriculture Marketing) on the recommendations of Departmental Promotion Committee duly constituted as per Rules ibid. His promotion order dated 6.3.2010 was also issued by Competent Authority. Competent Authority while granting promotion to the petitioner vide order dated 6.3.2010 was presumably fully conversant with the Rules and Regulations at the time of promotion. Therefore, impugned order could not be reverted by respondent No. 1 on the ground that Competent Authority had committed violation of Rules and Regulations in granting promotion to the petitioner at the relevant time. It is also noteworthy that even show-cause notice dated 28.1.2011 to the petitioner fails to show any such ground for his demotion. Certainly resporient No. 1 cannot take any premium of a wrong if committed by Competent Authority while granting promotion to the petitioner, to revert the same through impugned order.
13. At this juncture an extract from the above-cited dictum of Hon'ble apex Court in case of Province of the Punjab through Secretary, Agriculture, Government of Punjab and others (2006 SCMR 678) is reproduced hereunder for ready reference:- "8. Keeping in view the observation made in the above judgment which has been authored by one of us (Justice Iftikhar Muhammad Chaudhry) qua the facts and circumstances of the case in hand, we are constrained to note with concern and it was Bashir Ahmed Sabir, Director Agriculture who appointed respondent as Junior Clerk as back on 10th November, 1990 and because he was the Senior Officer holding the post of Director, therefore, presumably the rules and regulations should have been on his sleeves at the time of appointment of respondent if he was of the opinion after 11 years that he had committed violations of rules and regulation in making respondents' appointment as Junior Clerk then instead of terminating his service, he should have blamed himself and should have decided whether he is capable to remain in service or otherwise morally and legally instead of claiming premium of his own wrongs. Thus, the competent authority of Provincial Government i.e. Chief Secretary had a legal burden upon his shoulders to take action against Director of Agriculture (Bashir Ahmed Sabir) not only for making alleged illegal appointment as per his own admission, without prejudice to the case of respondent but also engaging the Provincial Government in litigation upto this Court at the cost of public exchequer.
9. A perusal of record so made available before us indicates that Director of Agriculture i.e. Bashir Ahmed Sabir had contemplated. Action of termination of service against respondent perhaps for some differences with the uncle of respondent who is also serving in the same department. If it is so it is unfair on his part as well as against the principles of good governance, justice, equity and law.
10. A careful scrutiny of the impugned order of Service Tribunal at the touchstone of settled principles of law on the subject persuades us to hold that impugned order being legal and valid needs no interference by this Court."
14. Needless to mention that it was incumbent upon the Competent Authority to apply its conscious mind while scrutinizing the petitioner's case and antecedents for promotion before issuing the promotion order in his favour. Once petitioner has been promoted after fulfilling all the codal formalities by the Competent Authority the same could not be questioned or reverted on the flimsy ground that the post of Auctioneer had to be filled in through initial recruitment under some Rules.
Certainly a matter being past and closed transaction cannot be re-opened under the principle of locus poenitentiae. The impugned orders dated 16.3.2011 and 28.6.2011, therefore, are neither based on principle of justice and equity nor tenable in law.
15. For the foregoing discussion and reasons, impugned orders dated 16.3.2011 and 28.6.2011 are declared illegal, void and ineffective against the rights of the petitioner. The same are, therefore, set aside. This writ petition is allowed accordingly. .