ALI BAQAR NAJAFI, J. --- Through this Constitutional petition the petitioner seeks a direction to the respondent-TMA to release the salary of the petitioner in BS-14 with effect from 30.07.2007 by setting aside the impugned order dated 26.06.2009.
2. The brief facts giving rise to the filing of this petition are that the petitioner was working as Octroi Clerk in Ex-Municipal Corporation, Bahawalpur as his services were adjusted in TMA City, Bahawalpur in the capacity of Junior Clerk BS-5 on account of devolution under Section 14 of the Punjab Local Government Ordinance, 2001. Since the petitioner possessed the Diploma of three years in Civil Engineering, therefore, he was posted as Building Inspector BS-5 on 14.02.2007 by respondent No. 2. Meanwhile, the matter of up-gradation of Building Inspector from BS-5 to BS-14 was referred by the TMA to the Government of the Punjab on 12.03.2007. The Government issued a policy letter wherein the Building Inspectors were to be adjusted for which the petitioner moved several applications to adjust in five existing and sanctioned posts which are still lying vacant.
Since the petitioner was eligible to be appointed as Building Inspector, therefore, he was awarded BS-14 on 27.04.2009 by respondent No. 2. However, surprisingly on 26.06.2009 a letter was issued by respondent No. 4 whereby Scale-14 was withdrawn by him. Hence this petition.
3. Learned counsel for the petitioner submits that the petitioner has been working as Building Inspector since 14.02.2007 and the post of Building Inspector has also been upgraded since 30.07.2007, therefore, he is entitled to get the pay and allowance in the said scale BS-14 with effect from 30.07.2007; that the irregular appointment will not affect the rights of the petitioner on the basis of principle of locus poenitentiae. Places reliance on Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar A.I (2006 SCM R 678), Muhammad Zahid lqbal and others v. D.E.O., Mardan and others (2006 SCM R 285) and Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waleed and 7 others (2004 SCM R 303).
4. In the report and parawise comments submitted by respondent No. 1 a stand has been taken that the impugned order dated 26.06.2009 has been withdrawn and that earlier order dated 09.05.2009 has been restored by the competent authority vide order dated 06.07.2009, therefore, the writ be disposed of.
5. However, the learned counsel for respondent No. 3 submits that the petitioner was required to pass the exam to be convened by the Punjab Public Service Commission, whereafter it was within the domain of the District Coordination Officer to pass an appropriate order; that the up-gradation of the post from BS-5 to BS-14 is invalid as the old law has been changed; that it is within the powers of District Coordination Officer to pass any order in respect of the prayer made by the writ petitioner.
6. I have heard the learned counsel for the parties and perused the available record.
7. The petitioner was appointed as Junior Clerk (Building Inspector) in BS-5 on 14.02.2007, whereafter on 09.05.2009 he was awarded BPS-14 by the Tehsil Municipal Officer. But vide impugned order dated 26.06.2009, the Tehsil Nazim had withdrawn the letter dated 09.05.2009 on the advice of Audit Department, TMA City, Bahawalpur. Upon the appeal of the petitioner the Selection Committee Tehsil Municipal Administration (City) Bahawalpur withdrew the order dated 26.06.2009, impugned herein and the order dated 09.05.2009 stood revived.
8. However, a perusal of the column of the Table of the Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005 promulgated on 30.07.2005 reveals that the appointing authority for the post of Chief Officer BS-14 was Tehsil/Town Nazim until the amendment made vide Notification dated 20.05.2008 whereby the District Coordination Officer substituted the Town/Tehsil Nazim. However, the Punjab Local Councils Servants (Service) Rules, 1997 empowers the Tehsil/Town Nazim for appointment in Grade-6 and above.
9. Since the District Coordination Officer had substituted Tehsil Nazim/Town Nazim, therefore, the order dated 09.05.2009 passed by the Tehsil Nazim/Town Nazim was an irregularity. .