ASIM HAFEEZ, J. Through this single judgment, I propose to decide constitutional petitions, as detailed in the Appendix- A and Appendix-B, attached herewith, involving common questions of law. In brief, the petitioners have impugned transfer orders, whereby , same were repatriated to their parent local government(s), wherein they held substantive posts before being adjusted / deputed to act or perform as Secretaries Union Council(s) respectively . In some petitions, personal grievances were raised regarding alleged failures to pay / release salaries, determination whereof call for appreciation of factual details - in the wake of assertions and counter-assertions. Such factual disputes are not subject matter of adjudication, and this judgment is confined to the determination of question of legality , or otherwise, of the impugned repatriation / transfer orders, epicenter of real controversy .
2. In order to facilitate adjudication of variously filed petitions, with time lag of three years - it is appropriate to segregate them into two classes. The petitions, appearing in Appendix-A, are filed before the promulgation of The Punjab Local Government Act, 2019 (Act XIII of 2019 (referred as "PLGA, 2019") - which came into force on 04.05.2019 - and the petitions, listed in Appendix-B, are filed after the enforcement of PLGA, 2019. The petitions, in Appendix-A, impugn orders dated 31.05.2017 and 02.06.2017 - wherein petitioners therein were repatriated to respective parent local government(s) in wake of deployment plan, prepared under erstwhile Punjab Local Government Act, 2013 ("PLGA, 2013"). And the petitions, in Appendix-B, impugn order(s) dated 30.12.2019 - including the follow-up orders passed with reference to each of the petitioners - whereby petitioners were transferred / repatriated to report to the parent local government(s), upon promulgation of PLGA, 2019.
3. Briefly the facts, necessary for adjudication of the matter , are that the petitioners, as represented, were appointed as Octroi Tax Superintendent(s), Inspector(s), Naib Qasid(s) / Peon and Goods Export Tax Clerk(s) / Naib Qasid(s) etc. and tasked with the responsibilities of collection of Octroi / Goods Export Tax in terms of West Pakistan Municipal Committees Octroi Rules, 1964 ("Octroi Rules, 1964") and Punjab Zila Council (Export Tax)
Rules, 1990 ("Export Tax Rules, 1990") respectively . On 01.07.1999 the Octroi / Goods Export tax was abolished, but respective posts / cadre of the Octroi / Goods Export Tax staff survived. Later on, the petitioners were directed to perform duties in the succeeding local governments, constituted under the erstwhile The Punjab Local Government Ordinance, 2001 (referred as "PLGO, 2001"), which repealed erstwhile The Punjab Local Government Ordinance, 1979 ("PLGO, 1979"). The rules framed under PLGO, 1979 or earlier enactments were saved in terms of sub-section (2) of section 196 of PLGO, 2001. The services of the petitioners were utilized in accordance with the mandate of section 184 of PLGO, 2001, who were, inter-alia, deputed to perform duties as Secretaries Union Council(s) and Naib Qasids, in various tiers of the successive local governmen ts. The petitioners continued to perform their duties, whose service structure, seniority list and terms of service remained separate and independent of the general cadre of regular employees of the Local Governme nt & Community Ddevelopment department ("LG&CD department"), gove rned through separate rules and terms of service. In the year 2013, the Government introduced The Punjab Local Government Act, 2013 (PLGA, 2013), and succeeding local governments were accordingly constituted. Upon preparation of the deployment plan under the framework of newly promulgated enactment; whereby the services of the petitioners were repatriated to their parent local governments, - Municipal Committees and District Councils accordingly , such orders are impugned through the petitions, listed in Appendix-A. Thereafter , during the pendency of said constitutional petitions, new enactment, i.e. PLGA, 2019, was promulgated, and succeeding local governments, comprising of five categories, i.e. Metropolitan Corporation, Municipal Corporation, Municipal Commit tee, Town Committee and Tehsil Council were established accordingly (as claimed by the respondents). Subsequently , deployment plan was prepared in terms of section 316 of PLGA, 2019, which was approved by the competent authority , and the petitioners - being the servants of the local government, called as Local Council Service in terms of section 297 of PLGA, 2019 - were repatriated to report to their parent local governments. One of the reasons, for the impugned repatriation orders, was that the Union Councils, lower tier of the local government, was abolished under the PLGA, 2019. The petitioners questioned the legality of said orders of repatriation through the petitions listed in Appendix-B.
The petitioner , in W.P. No.39293 of 2016, impugn orders of repatriation dated 26.11.2016 and 30.12.2016, wherein facts are that petitioner was appointed as Water and Sanitation promoter in Zila Council, Sialkot in November , 1996, and regularized in July, 1999. The petitioner was adjusted as Sanitary Inspector (BS-06) in Tehsil Municipal Administration, Sialkot, in terms of sectio n 184 of PLGO, 2001. The petitioner , in the year 2006, was transferred / posted as Secretary Union Council Muzaffarpur and thereafter to Union Council Bhagwal-A wan, and was repatriated to District Council Sialkot, as per deployment plan, prepared under the provisions of PLGA, 2013, which order is subject-matter of adjudication hereof. No transfer order was, however , passed with respect to the petitioner after the promulgation of PLGA, 2019.
4. Learned counsels appearing for the petitioners submit that, upon abolition of Octroi / Goods Export Tax regime, services of the petitioners stood permanently absorbed, as part and parcel of Schedule of Establishment of Union Administration / Union Council, which intention was manifested from letter dated 27.06.2002. It is alleged that the petitioners were appointed as Secretaries Union Councils, who have acquired requisite training for the purposes of performance of public services, relating to registration of birth, marriage, divorce and death, and same continued to perform these services for the last 20 years, thus creating legal rights in favour of the petitioners qua incumbent positions / posts held as Secretaries Union Council. Reliance is placed on the ratio of decision in the case of "KAREEM BUX and others v. PROVINCE OF SINDH through Chief Secretary , Government of Sindh and others" (2012 PLC (C.S.) 160). Further submits, that repatriation to parent local governments otherwise implied effective exclusion of the petitioner from the service, as the posts / nomenclatures of Octroi / Goods Export Tax were already declared as dying cadre in terms of letter dated 19.04.2017, adversely affecting the prospects of service of the petitioners. Per learned counsel, there was no occasion to repatriate the petitioners to their parent local governments in the absence of establishment of new local governments, which would be established as a consequence of an election, which are not scheduled yet. Adds that defunct Union Councils are still operational, where Secretaries, some appointed in the wake of repatriation of petitioners, are still performing public services, hence transfer of the petitioners, in these circumstances, is discriminatory and manifestly arbitrary . Reference is made to the judgments reported as "I.A. SHAWANI and others v. GOVERNMENT OF PAKIST AN through Secretary Finance Division, Islamabad and others" (1991 SCMR 1041 ), "Dr. MOBASHIR HASSAN and others v. FEDERA TION OF PAKIST AN and others" (PLD 2010 SC 265), and "ABID HUSSAIN and 5 others v.
SECRET ARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT , CIVIL SECRET ARIA T, LAHORE and 5 others" (2012 PLC (C.S.) 26). Lastly contends that orders of transfer / repatriation are contrary to the mandate of sub-sections (2) and (3) of section 316 of PLGA, 2019. The counsels representing the petitioners in similar petitions have adopted the arguments addressed and noted above.
5. Learned counsel representing the petitioner in W.P. No.39293 of 2016 adopted the submissions made, however , added that petitioner was accordingly absorbed in Tehsil Municipal Administration as Sanitary Inspector (BS-6), as evident from letter dated 09.06.2003, which absorption was given effect vide letter dated 25.07.2005. Further submits that petitioner was transferred and posted as Secretary Union Council in the year 2006 and has been working there till order of repatriation, fact evident from the service record maintained. Learned counsel, emphasized that petitioner has acquired a vested right, in wake of alleged permanent absorption, which cannot be disturbed in view of the principle of locus poenitentiae. Further submits that department has not released the salary of the petitioner since 2016, which default calls for special indulgence under the constitutional dispensation.
Learned counsel referred to the judgments reported as " NASEEM UR REHMAN v. SECRET ARY, ESTABLISHMENT DIVISION, ISLAMABAD and 16 others" (2001 PLC (C.S.) 710), "SHAHID ALI and 12 others v. ADMINISTRA TOR, DISTRICT COUNCIL, LARKANA and another" (2002 PLC (C.S.) 655), "SHAH MUHAMMAD CHAUDHR Y v. CHAIRMAN, PAKIST AN STEEL MILLS CORPORA TION and 3 others" (2002 PLC (C.S.) 1541 ), "Mrs. FARKHANDA TALAT v. FEDERA TION OF PAKIST AN through Secretary Establishment Division, Islamabad and others" (2007 SCMR 886), "GHULAM RASOOL v. SECRET ARY, GOVERNMENT OF PAKIST AN, MINISTR Y OF DEFENCE and others" (2011 SCMR 994), "Kareem Bux AND OTHERS V.
PROVINCE OF SINDH through Chief Secretary , Government of Sindh and others" (2012 PLC (C.S.) 160), "CONTEMPT PROCEEDINGS AGAINST CHIEF SECRET ARY, SINDH AND OTHERS" (2014 PLC (C.S.) 82), "SENA TE SECRET ARIA T through Chairman and another v. Miss FAIQA ABDUL HAYEE" (2014 SCMR 522), "SECRET ARY ESTABLISHMENT DIVISION, GOVERNMENT OF PAKIST AN, ISLAMABAD v. AFTAB AHMED and others" (2015 SCMR 1006 ) and "BABAR KHAN v. PROVINCIAL GOVERNMENT through Chief Secretary and 5 others" ( 2015 PLC (C.S.) 906 ).
6. Learned counsels for the respondent s controverted the submissions. Per learned counsel, petitioners were appointed as Octroi Clerk / Goods Export Tax Clerk - being the substantive posts - in terms of Octroi Rules, 1964, and Export Tax Rules, 1990. The Octroi / Goods Export Tax was abolished on 01.07.1999. Upon promulgation of PLGO, 2001, the petitioners were merely adjusted, for the purposes of utilizing their services, in succeeding local governments, in view of section 184 of PLGO, 2001, who were not permanently absorbed and no process of transfer by absorption ever commenced or concluded. Adds that service cadre of the petitioner was not changed or ever merged with the general cadre of regular employees of LG&CD department, both of which classes of employees are governed through separate set of rules, service structure and cadre. Further submits that the peers of the petitioners had earlier filed constitutional petitions and claimed benefit of Notifications regarding up- gradation, offered by Government, to the junior clerks - employees LG&CD depart ment -, on the premise that they were performing duties of similar nature, as performed by the junior clerks; alleged right on the claim of permanent absorption, as Secretaries Union Council, was raised and declined by the Court. Adds that upgradation was allowed but no change in the cadre servic e was allowed. Learned counsel referred to the case of "ABID HUSSAIN and 5 others v. SECRET ARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT , CIVIL SECRET ARIA T, LAHORE AND 5 OTHERS" (2012 PLC (C.S.) 26) which judgment was upheld by the Apex Court while dismissing the Civil Petitions No.75 1-L and 752-L of 2011. Learned counsel also referred to the decisions by Honourable Supreme Court of Pakistan while deciding the Civil Appeals No.213 to 220 of 2018 and Civil Appeals No.208-L, 607 & 608 of 2017. Learned counsel submits that petitioners were repatriated to their parent local governments, against substantive posts, which though declared as dying cadre but never abolished and service structure of the petitioners is still intact, and regular promotions were allowed to the petitioners on the basis of seniority , inter-se their respective service cadre. Reference is made to the policy letter dated 05.01.2004. The claim of vested right was refuted stoutly . Per learned counsel, in view of abolition of lowest tier of local government, i.e. Union Council, under the provisions of PLGA, 2019, the petitioners were deployed to perform duties in their parent local governments, which order was passed against a distinctive class of employees, falling in the category of Octroi / Goods Export Tax staff. Learned counsel explained that defunct Union Councils are temporarily working for ensuring continuity in provisioning of public services and the employees belonging to the general care of regular employees of LG&CD department were tasked to perform duties accordingly under sub-section (2) of section 316 of PLGA, 2019. Learned counsel reiterat ed that repatriation orders are class / cadre specific and not a result of alleged pick and choose policy .
With reference to W.P. No.39293 of 2016, learned counsel submits that petitioner has not joined the duty assigned with the District Council Sialkot, in terms of order of repatriation. Adds that salaries for few months were paid in compliance of order of this court. Learned counsel refuted the claim of salary on account of failure of the petitioner to join duties, since 31.12.2016. Further submits that no right of permanent absorption can be legally claimed, in view of submissions made.
7. Arguments heard. And record perused.
8. Before adverting to the submissions, it is apt to dispose of Miscellaneous Applic ation bearing C.M.No.3 of 2020, filed for seeking permission to implead the applicants therein as party to instant proceedings. Applicants alleged that they are serving as Secretaries Union Councils, as employees of LG&CD department, having separate service structure and cadre, some of whom, inter-alia, are deputed to manage the defunct Union Councils upon repatriation of the petitioners. In essence, the petitioners, through these petitions, have questioned the legitimacy of orders of their repatriation, and not raised any competing claim against the Applicants, impliedly or explicitly . The applicants though dispute the claim of permanent absorption, by way of shifting from one cadre to another , but have not objected to the utilization of services of the petitioners, as Secretaries Union Council in the year 2002. The service structure / cadre of these two set of employees is different, who are governed by separate set of rules and inter-se status was not the pivotal dispute inn these proceedings. In view of peculiar nature of instant proceedings, presence or representation of the applicants is not necessary for the determination of questions raised and no prejudice is likely to be caused to the applicants upon determination of the ques tions of law raised. Hence, the application under reference is dismissed.
9. There is no dispute that petitioners - except the petitioner in W.P. No.39293 of 2016 - were appointed as Octroi Tax Inspectors / Naib Qasids and Goods Export Tax Clerks, who were entrusted with the responsibility of collection of Octroi and Goods Export Tax, before its abolition in the year 1999. Undisputedly , the posts of Octroi / Goods Export Tax staff were created in terms of Octroi Rules, 1964 and Export Tax Rules, 1990, whose terms and conditions of services were governed and regulated in terms of West Pakistan Municipal Committee Service Rules, 1969 (Service Rules, 1969), which rules were repealed subsequently by the Punjab Local Councils Servants (Service) Rules, 1997 (Service Rules, 1997). It is pertinent to mention that Service Rules, 1997 were framed in exercise of powers under section 43 of PLGO, 1979. It is not disputed that various employees of LG&CD Department were also performing duties as Secretaries Union Council(s) [BS-5] - upgraded from time to time -, who were appointed in terms of serial No.54 of Punjab Local Government and Community Development Department Services Rules 1981 - framed in exercise of powers conferred in terms of section 23 of the Punjab Civil Servants Act, 1974 (Service Rules, 1981). There were employees, acting as Secretaries of Municipal / Town Committees (BS-1 1), appointed in terms of Punjab Local Council Services (Appointment and Conditions of Services) Rules, 1983 - framed in exercise of powers under section 42 of PLGO, 1979 (Service Rules 1983), upgraded from time to time. That serial No.54 of Service Rules, 1981 and Service Rules, 1983 were, later on, repealed through the Punjab Local Government District Service (Tehsil / Town Municipal Administration Cadre)
Rules, 2005), which TMA cadre Rules, 2005, were repealed through the Punjab Local Government Service (Appointment and Conditions of Service) Rules, 2018, which referred rules are not applicable to the service cadre of the Petitioners. It is not disputed that service structure / cadre of the petitioners - treated as servants of the Local Council Service - is different from the service cadre of the members / employees of Local Government Service, as referred under section 296 of PLGA, 2019. The alleged claim of permanent absorption is required to be examined in the context of aforesaid undisputed facts and mutually exclusive set of rules.
10. The Petitioners allegedly claimed permanent absorption as Secretary Union Council(s), primarily on the basis of letter dated 27.06.2002, alleging that services stood permanently absorbed as part of Schedule of Establishment of Union Administration / Union Council(s ). It is stressed that, instead of fresh recruitment in the successive local governments constituted in terms of PLGO, 2001, the petitioners were adjusted in respective tiers thereof, and now they cannot be repatriated to their parent local government(s) against the posts, declared as dying cadre. The counsels for the respondents refuted this claim, alleging that claim is contrary to the record and is otherwise against the legislative intent manifested through section 184 of PLGO, 2001. Whether the services of the petitioners were merely utilized without being absorbed permanently into different service cadre, is the fundamental question. The scope of section 184, ibid, is critical. It is expedient to reproduce section 184, ibid, which reads as; "184. Bar on recruitments.- (1) During the transition period specified in section 187 and till the adjustment for optimal utilization of all employees of the Government, Local Council Service and Servants of Local Councils, no fresh recruitment shall be made to fill any vacancy in the local governments set up under this Ordinance, except with the express sanction of the Government.
(2) The Government shall make available the services of the employees placed in its surplus pool for utilization in the offices decentralized to the District Government,T ehsil Municipal Administration, Town Municipal Administration and Union Administration.
(3) The local governments shall utilize the services of the employees of the Loca l Councils set up under the repealed Punjab Local Government Ordinance, 1979 (VI of 1979) for meeting the shortfall in the offices of the Zila Councils, Zila Nazims, Tehsil Councils, Tehsil Municipal Administrations, Town Councils, Town Municipal Administrations, T ehsil Nazims, T own Nazims and Union Administrations."
[Emphasis supplied]
11. The services of the three categories of employees, i.e. Government, Local Council Service and Servants of Local Councils were utilized. The petition ers, for all intent and purposes, were treated as Servants of the Local Councils, whose services were government under the Service Rules, 1997. Upon perusal, the legislative intent is clear and calls for no ambiguity . Section 184 of PLGO, 2001 does not in any manner extend or confer any statutory right of horizontal movement or absorptio n, from one service cadre to a different cadre. The objective / purpose of section 184, ibid, was to utilize the services of the petitioners, which exigency could hardly be construed as appointment by transfer or absorption. There is nothing available on record to substantiate the appointment of the petitioners as Secretary Union Council(s) or confirmation as part of another cadre, under the applicable rules with respect to said service cadre. The petitioners had not claimed benefit of appointment, either , under serial 54 of Service Rules, 1981 or Service Rules, 1983, which cater different class of employees. The claim of permanent absorption through alleged adjustment, on the basis of letter dated 27.06.2002, is misconceived and holds no legal basis. Whether any legal or enforceable right has been created by letter dated 27.06.2002 or was it a merely an indication of assignment of duties.
In order to ascertain the legitimacy of alleged claim, it is expedient to repro duce contents of letter dated 27.06.2002, which reads as; "1. All the Zaila Councils is in the Punjab
2. All the T chsil/T own Nazims in the Punjab.
3. All the Union Nazims in the Punjab.
Subject: SCHEDULE OF EST ABLISHMENT OF TMAs /UNION ADMINISTRA TIONS.
This is continuation of this Department' s letters of even number , dated 20.06.2002 and 25.06.2002 on the above noted subject. It is clarified that all the employees of L.G & RD Department, defunct Zila Councils, defunct Urban Local Councils (now TMAs) and others posted in the Union Administration as Secretary Union Councils/Naib Qasids etc. subject to a maximum of three Secretaries and two Naib Qasids Union Administration shall now become a part of Schedule of Establishment of the respective Union Administrations in which they have been posted. These posts shall stand abolished from the Schedule of Establishment of L.G &RD Department, defunct Zila Councils and defunct Urban Local Councils/TMAs on and will be borne on the Schedule of Establishment of respective Union Administrations w.e.f. 1st July 2002. The Union Administrations should complete all codal formalities by getting the Schedule of Establishment approved from their respective Union Councils.
2. All the Union Nazims arc advised to ensure that the employees posted in their Union Administrations should get their salaries w .e.f. 01.07.2002 out of the Budget of their Unions.
(YOUSAF NASIM KHOKHAR)
ADDITIONAL, SECRET ARY (COORD.)".
12. The reliance of the petitioners on letter dated 27.06.2002 is misconceived. Mere classification of posts for provisioning of maximum of three Secretaries and two Naib Qasids in the Schedule of Establishment of respective Union Administration does not imply or manifest alleged absorption of the petitioners in general cadre of regular employees of the LG&CD department. The Schedule of Establishment merely sets forth the staff to be employed and do not endorse or substantiate factum of alleged absorption of the petitioners as Secretary Union Councils. No case of proper , legal and valid absorption is made out. No material steps were ever initiated or concluded to affect alleged absorption of the petitioners. In this case no benefit could be claimed in terms of section 184 of PLGO, 2001 and letter dated 27.02.2002. The submissions made are, even otherwise, contrary to the facts on record, which clearly manifest that petitioners lately secured promotions on the basis of seniority , inter-se their peers, i.e. Octroi / Goods Export Tax staff cadre. The peculiarity of Octroi / Goods Export tax service cadre was meticulously adhered to while allowing promotions to the petitioners, which particular fact was not controverted. The seniority of the petitioners, for the purposes of promotions, was reckoned from the date of appointment of petitioners as Octroi / Goods Export tax staff and not from the date of alleged absorption in the year 2002. Above all, the record of the service of the petitioners maintained its separate identity and acted upon at the time of allowing promotions. It was categorically mentioned in the policy letter dated 05.1.2004, which also defines status of the petitioners, that the posts of Octroi / Goods Export Tax staff were not abolished notwithstanding the abolition of tax regime. It is notable that Octroi / Goods Export Tax service cadre claimed benefits of the Notifications dated 19.09.2007, 16.02.2008 and 04.01.2016 - on the premise that nature of the duties and services discharged were similar to those as performed by the prospectively up-graded junior Clerks. And up-gradation was not claimed on the basis of alleged absorption in the service cadre of regular employees of LG&CD department, evidently manifest in the case of "Abid Hussain", (supra) relevant portion therefrom, for facility , is reproduced hereunder as; "6. With respect to the remaining petitioners, it is undisputed that on the criterion of legal status as permanent government servants, there is no distincti on between them and the beneficiaries under the notification dated 19-9- 2007 and 16-2-2008 . These petitioners are also discharging duties and services of the same type and nature as the beneficiary employees of the local government department ..............
7...................... It is the legal status of an employee as a permanent government servant and the nature of his work which can have any relevance to classification of beneficiaries under the notification "
[Emphasis supplied]
13. The decision in the case of "Abid Hussain", (supra) - relating to Notifications dated 19.09.2007 and 16.02.2008 - was upheld by the Hon'ble Supreme Court of Pakistan while dismissing Civil Petitions No.751-L and 752-L of 2011 vide order dated 04.12.2012, which decision was further relied upon and referred subsequently by Hon'ble Supreme Court of Pakistan in decision dated 04.10.2018, passed in Civil Appeals No.213 - 220 of 2018, C.P.No.3083-L of 2017, C.A's No. 607 - 608, CMA 's No.2853, 2840,2652-2659-L of 2017, while interpreting the Notification dated 04.01.2016, offering up-gradation to the employees in the year 2016. The service cadre of Octroi / Goods Export tax staff remained unchanged, which fact has been acknowledged by the petitioners at all material times. The petitioners failed to establish legitimate transfer / migration or alleged absorption into different Service Cadre. The trajectory of the local government laws, introduced by the competent legislature from time to time, acknowledged and maintained segregat ion amongst the various classes of employees and same has been preserved while promulgating PLGA, 2019. Briefly re-capped, the divide amongst the employees of various classes - based on their service structure / cadre and posts and separate set of rules - was conspicuous in terms of sections 42 and 43 of PLGO, 1979, sectio n 184 of PLGO, 2001, section 142 of PLGA, 2013 and sections 296 and 297 of the PLGA, 2019. Even otherwise, the claim of horizontal movement, from one cadre to another cadre by way of alleged absorption, is not permissible in terms of sub-rule (3) of rule 2 of Service Rules, 1997, inter-alia applicable to the petitioners. It is expedient to reproduce said rule, for ease of reference, which reads as; "(3) Members of one cadre of service shall not be appointment to a post borne on any other cadre of the service."
14. In essence, the adjustment of the petitioners in the year 2002, services of the petitioners were deputed or utilized in the successive local governm ent(s) in terms of section 184 of PLGO, 2001, which provision of law otherwise intended no permanent absorption, from one cadre to another . In these circumstances, no legally enforceable right can be claimed qua purported claim of absorption. The ratio of decision in the case of "ALI AZHAR KHAN BALOCH and others v. PROVINCE OF SINDH and others" (2015 SCMR 456) fortifies that no advantage / benefit can be claimed on the basis of an illegal absorption, from one cadre to another . Relevant portion of the decision appearing at paragraph 120 is reproduced, for ease of reference, which reads as; ".... Neither a person can be absorbed under these Rules nor non-Civil Servant or a deputationist could be allowed to travel horizontally outside the cadre to penetrate into different cadre service, post through an appointment by transfer"
15. In fact, upon issuance of subsequent orders of repatriation of the petitioners of 30.12.2019, in terms of PLGA, 2019, the earlier repatriation directed vide orders dated 31.05.2017 - subject matter of petitions in Appendix-A - became infructuous, legality whereof need not to be adjudicated specifically . The commonality of challenge, however , boils down to the determination of claim of alleged absorption, in the petitions in Appendix-A and B, which is decided against the petitioners. The petitioners claimed alleged rights of perma nent absorption into a different service cadre without appreciating that no such rights ever accrued or claimable in law. The decision in the case of "KAREEM BUX and others v. PROVINCE OF SINDH through Chief Secretary , Government of Sindh and others" (2012 PLC (C.S.) 160) is not applicable, which is otherwise distinguishable on facts. Notwithstanding the power available to determine the method( s) of appointment under rule 5 of the Sind Councils Unified Grade Service Rules, 1982, the ratio of decision in the case of KAREEM BUX and others (supra) is contrary to the dictum of law laid down by the Apex Court in the case of "ALI AZHAR KHAN BALOCH" (supra), relevant portion whereof is reproduced hereunder as; "The petitioners, who were not members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in deviation of the Service Rules of 1982 cannot be allowed to continue in the Unified Services Group. The Chief Minister or the Board cannot induct any stranger in the service of Unified Group either by exercising powers under Rule 9(1) of the Rules of 1974 or by Rule 12(5) of the Rules of 1982. Any such induction is against the recognized norms of Service law and, therefore, the petitioners were liable to be repatriated to their parent departments forthwith in terms of the judgment under review . Absorption of the petitioners under the garb of 'Appointment by Transfer ' in the Unified Services Group has directly affected the rights of the employees in the service, guaranteed under Articles 4 and 9 of the Constitution".
[Emphasis supplied]
16. Similarly , the case of the petitioner in W.P.No.39293 of 2016 is devoid of any legal basis. The petitioner was adjusted as Sanitary Inspector in BS-6, who was later on transferred / posted as Secretary Union Council on request, pleading case of hardship. The counsel has referred to letters dated 09.06.2003 and 25.07.2005, to plead claim of permanent absorption. The submissions are misconceived. Mere use of an expression "to be absorbed", in the absence of any lawful process adopted to effect absorption do not create any legal or enforceable right. No estoppel can be claimed by the petitioners against the department in the circumstance of this case. Reference is made to the ratio of decision in the case of "ISLAMIC REPUBLIC OF PAKIST AN v. ISRARUL HAQ AND 23 OTHERS" (PLD 1981 Supreme Court 531) - paragraph 31, wherein it was observed that " No corporate body or statutory functionary can be bound by estoppel to do something beyond its powers and cannot be bound to do something which is regulated by statute in any other way than the statute requires ". It continues to observe that "A very useful discussion on the subject in the light of latest case law is to be found in (1971) 87 Law QR 15 concluding as follows; "It is surely quite clear in principle that the question of whether or not a public authority has exceeded its powers cannot be determined by a decision of the authority itself to ignore the legal limita tions placed upon it. The whole basis of our administrative law would be undermined if it were possible for public bodies to validate at will acts which would otherwise be ultra vires"
17. The principle of locus poenitentiae cannot be pressed in view of an obvious illegality , when no legal process to allegedly absorb the petitioners into cadre of regular employees of LG&CD department was ever initiated, let alone concluded. Reference is made to the decision in the case of CONTEMPT PROCEEDINGS AGAINST CHIEF SECRET ARY, SINDH AND OTHERS (2013 SCMR 1752 ) - paragraph No.174 thereof. The judgments referred by learned counsel for the petitioner are not applicable to the facts of this case, when the petitioner was not legally and validly absorbed in the first place. The petitioner referred to the case of "SENA TE SECRET ARIA T through Chairman and another v. Miss FAIQA ABDUL HAYEE" (2014 SCMR 522), facts thereof are not applicable to this case as no incidence of any alleged mala-fide was present or substantiated in this case. No legal and enforceable right can be claimed by the petitioner in view of the ratio of the decision in the case of "ALI AZHAR BALOUCH "
(supra). Reference is also made to a recent judgment in the case of Ms. AZRA MOOQUEEM v. KARACHI METROPOLITIAN CORPORA TION through Administrator and 3 others (2019 PLC (C.S) NOTE 2. No horizontal movement / absorption, from one cadre to another cadre can be claimed by the petitioner in view of sub- rule (3) of rule 2 of Service Rules, 1997, referred above. I conclude that the petitioner fails to make out case for alleged absorption as Secretary Union Council. The petitioner has objected to the lack of payment of salary , which allegation is controverted by the department. Upon perusal of report submitted, it is evident that petitioner has not joined the duty assigned. The petitioner failed to substantiate that he had joined or performed duties after the order of repatriation on 30.12.2016. In view of the conduct of the petitioner , there is no occasion to pass any direction for the release of the salary . If advised, the petitioner may hitherto join duty and seek salary with respect to duties performed.
18. There is another aspect of the matter . The order of repatriation of the petitioner to report to their parent local government - being the servants of the local council service in terms of section 297 of PLGA, 2019 - is otherwise legally justiciable and valid in wake of abolition of Union Administration / Councils, as lowest tier of the local governments under the PLGA, 2019. The petitioners have not challenged, in instant proceedings, the vires or constitutionality of the constitution or composition of successive local governments and various classes thereof, constituted in terms of subsection (2) of section 3 and section 15 of PLGA, 2019 . The functioning of the defunct local governments, Union Council(s) to be precise, is a transitory arrangement and carried out in accordance of sub-section (2) of section 316 of PLGA, 2019. For quick comprehension of the scope of subsection (2) of section 3 and section 15 of PLGA, 2019, it is expedient to reproduce said provisions of PLGA, 2019, which read as; "3. Dissolution of existing local governments .- (1) All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIIIof 2013) are hereby dissolved.
(2) As soon as may be but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments in accordance with the provisions of section 15 of this act.
15. Constitution of local governments.- (1) The government shall, having regard to the provisions of subsection
(2) of section 3 of this Act, constitute local governments of various classes in the following manner:-
(a) a Metropolitan Corporation for each Metropolitan;
(b) a Municipal Corporation for each Municipality with a population of not less than two hundred and fifty thousand as per the latest census;
(c) a Municipal Committee for each Municipality with a population of not less than seventy-five thousand as per the latest census;
(d) a T own Committee for each town; and
(e) a T ehsil Council for each T ehsil in the Punjab.
(2) Every local government shall be a body corporate having perpetual succession and a common seal, and, subject to the provisions of this Act, shall have power to acquire, hold and transfer property , both moveable and immoveable, to contract and to do all other things necessary for the purposes of its constitution; and shall by its name sue and be sued".
19. Petitioner 's counsels emphasized that orders impugned through the petitions listed in Appendix-B, are illegal, when analyzed in terms of sub-sections (2) and (3) of section 316 of PLGA, 2019. It is alleged that petitioners are entitled to work at the incumbent posts till new local governments are constituted, hence, alleged transfers / repatriation orders are unlawful. To comprehend this collateral attack to the orders impugned, it is expedient to reproduce section 316, ibid, which read as; "316. Interim authorities and continuation of public services.-
(1) On coming into force of this Act, all Mayors, Chairmen, Deputy Mayors and councilors of the defunct local governments shall cease to hold their respective offices forthwith.
(2) Without any prejudice to the provisions of subsection (1), all defunct local governments and other offices, agencies and authorities established under the Punjab Local Government Act, 2013 (XVIII of 2013) shall continue providing public services in their respective local areas without any interru ption till such time new local governments are constituted under this Act.
(3) Subject to any other relevant law, all officers and servants of the defunct local governments shall continue to discharge their respective duties and exercise their powers with the successor local governments under this Act, till such time they are assigned or transferred to any other local government.
(4) Nothing in this section shall preclude the Government from appropriately re-organizing the defunct local governments or for that matter reorganizing or reassigning any other office or authority established under the Punjab Local Government Act, 2013 (XVIII of 2013).
[Emphasis supplied]
20. The submissions are misconceived. There is no apparent violation of sub-section (2) of section 316 of PLGA, 2019. The defunct Union Councils, though functioning, are discharging public functions, which is a temporary arrangement and lawfully permissible. What tangible and enforceable legal right can the petitioners claim to question the legitimacy of transfer order s, and this critical question remained unsubstantiated throughout. The succeeding local governments are constituted in terms of the Notification dated 07.11.2019; Administrators were appointed under section 121 of PLGA, 2019 and tasked, along with such other officers / functionaries, to perform functions and exercise authority in accordance with the provisions of PLGA, 2019. The factum of succeeding local governments constituted was notified through Notification dated 08.11.2019. The deployment plan was accordingly prepared and subsequently orders for transfer / repatriation were passed only with respect to the Octroi / Goods Export tax staff cadre - identified as servants of Local Council Service under section 297 of PLGA, 2019. The petitioners failed to point or substantiate any incidence of similarity of service, cadre and posts with the service structure of Local Government Service, acknowledged under section 296 of PLGA, 2019. The reasonable and rational classification of the employee' s, each having different service structure and class, per-se repeals the allegation of any discriminatory treatment or unreasonableness. The orders of repatriation / transfers of the petitioners were passed by the duly constituted successive local governments - constitution, composition and functioning thereof is subject to the provisions of PLGA, 2019 and the limitations prescribed - and such orders are accordingly covered under sub-section (3) of section 316 of PLGA, 2019, which entitle the successive local governments to order transfer of officers or servants of defunct local governments to any other local government and no right can be claimed by the petitioners for retention at incumbent posts. There is no legal ground to object to the transfers orders issued against the petitioners. The learned counsels for the petitioners misconstrued the difference in the applicability of sub-sectio n (2) and sub-section (3) of section 316, ibid. Nothing has been pointed that what adversity would befall or prejudice be caused as a result of order of transfers / repatriation - albeit no illegality otherwise can be attributed to those orders - when adequate protection is extended in terms of section 320 of PLGA, 2019. It is expedient to reproduce section 320 of PLGA, 2019, which reads as;
320. Salaries and emoluments of officers and servants of the local governments during transition .- (1) On their allocation, re-allocation or transfer under section 316 of this Act, the salary , pensionary benefits and other emoluments of the officers and servants of the defunct local governments and any other office, agency or authority established under the Punjab Local Gove rnment Act, 2013 (XVIII of 2013), shall not be reduced or varied to their detriment. (2) For the removal of any ambiguity in this regard, all officers and servants of the defunct local governments and any other office, agency or authority established under the Punjab Local Government Act, 2013 (XVIII of 2013), shall continue to receive their authorized salary , pensionary benefits and other emoluments up till the time they are allocated, re-allocated or transferred to local governments constituted under this Act".
[Emphasis supplied]
21. This court is not inclined to examin e or review the policy decisions made, deployment plan prepared and implemented, in the absence of any illegality or violation of any actionable right conferred by statute. The petitioners have no legal right to invoke constitutional jurisdiction. The expression "legal right" and scope thereof has been aptly illustrated in the case of Dr. SHAFI-UR-REHMAN AFRIDI v. CDA. ISLAMABAD through Chairman and others" (2010 SCMR 378). The petitioners, being servants of Local Council Service, are directed to report to duly constituted successive local governments, against their substantive posts, and same are obligated to comply with said orders. Mere inconvenience, allegedly caused, in absence of any statutory violation or illegality can hardly be a ground worthy of any consideration while exercising constitutional jurisdiction.
22. In view of the above, all the constitutional petitions, listed in Appendix-A & B are incompetent and same are, therefore, dismissed. All applications are accordingly disposed of in terms of the judgment hereof. No order as to the costs.
APPENDIX 'A ' (W.P. 205 OF 2020).
1. Writ Petition No.39293 of 2016 titled "Zafar Iqbal v . Province of Punjab, etc.";
2. Writ Petition No.38262 of 2017 titled "Muhammad Shafiq, etc. v. Province of Punjab through Chief Secretary , etc.";
3. Writ Petition No.40257 of 2017 titled "Kaleem Abbas and 28 others v . Province of Punjab, etc.";
4. Writ Petition No.42781 of 2017 titled "Javed Sarfraz Mir, etc. v. Province of Punjab through Chief Secretary , etc.";
5. Writ Petition No.42778 of 2017 titled "Muhammad Iqbal, etc. v. The Province of Punjab, through Chief Secretary , etc.";
6. Writ Petition No.42767 of 2017 titled "Muhammad Riaz, etc. v . Province of Punjab, etc.";
7. Writ Petition No.43595 of 2017 titled "Taj Muhammad v . Province of Punjab, etc.";
8. Writ Petition No.47695 of 2017 titled " Fiaz Ahmad, etc. v . Province of Punjab, etc.";
9. Writ Petition No.58293 of 2017 titled "Syed Akhtar Hussain Shah, etc. v. Province of Punjab, through Chief Secretary etc."
10. Writ Petition No.74519 of 2017 titled "Pervez Akhtar , etc. v. Government of Punjab through Chief Secretary , etc.";
11. Writ Petition 212555 of 2018 titled "Ahmad Saeed Khan, etc. v. Government of Punjab, through Seceretary , Local Government, etc.";
12. Writ Petition No.212557 of 2018 titled "Muhammad Athar Khan, etc. v. Chief Secretary , Government of Punjab, etc.";
13. W rit Petition No.212559 of 2018 titled "Muhammad Zafar , etc. v . Chief Secretary , Government of Punjab";
14. Writ Petition 212561 of 2018 titled "Husnain Shah, etc. v. Government of Punjab through Chief Secretary , etc.";
15. Writ Petition 212562 of 2018 titled "Muhammad Asghar v. Government of Punjab through Chief Secretary , etc.";
16. W rit Petition 212563 of 2018 titled " Kanwar Iftikhar Ashiq v . Chief Secretary , Government of Punjab, etc.";
17. Writ Petition No.212565 of 2018 titled "Muhammad Husnain, etc. v. Chief Secretary , Government of Punjab, etc.";
18. Writ Petition No.212566 of 2018 titled "Riaz Ahmad, etc. v. Government of Punjab through Secretary Local Government, etc.";
19. W rit Petition No.212574 of 2018 titled " Muhammad Khan v . Chief Secretary , Government of Punjab, etc.";
20. Writ Petition No.212575 of 2018 titled "Syed Safdar Ali Bukhari v. Governm ent of Punjab through Secretary Local Government and Community , etc." and
21. W rit Petition No.236308 of 2018 titled "Amjad Bashir , etc. v . Chief Secretary , Government of Punjab, etc.".
APPENDIX 'B' (W.P. 205 OF 2020).
1. Writ Petition No.12631 of 2020 titled "Muhammad Ramzan, etc. v . Pronvice of Punjab, etc.";
2. Writ Petition No.1617 of 2020 titled "Kaleem Abbas, etc. v . Province of Punjab, etc.";
3. Writ Petition No.12309 of 2020 titled "Muhammad Bakhsh v . Province of Punjab, etc.";
4. Writ Petition No.8240 of 2020 titled "Manzoor Hussain v . Province of Punjab, etc.";
5. Writ Petition No.9195 of 2020 titled "Muhammad Riaz etc. v . Province of Punjab, etc.";
6. Writ Petition No.1 1079 of 2020 titled "Riaz Ahmad, etc. v . Province of Punjab, etc.";
7. Writ Petition No.381 of 2020 titled "Mukhtar Ahmad, etc. v . Province of Punjab, etc.";
8. Writ Petition No.688 of 2020 titled " Pervez Akhtar , etc. v . Province of Punjab, etc.";
9. Writ Petition No.682 of 2020 titled "Muhammad Yasin, etc. v . Province of Punjab, etc.";
10. W rit Petition No.689 of 2020 titled "Muhammad Shafique etc. v . Province of Punjab, etc.";
11. Writ Petition No.730 of 2020 titled "Azhar Iqbal, etc. v . Province of Punjab, etc.";
12. W rit Petition No.798 of 2020 titled "Muhammad Rafiq, etc. v . Province of Punjab, etc.";
13. W rit Petition No.1605 of 2020 titled "Nasir Ali, etc. v . Province of Punjab, etc.";
14. W rit Petition No.1604 of 2020 titled " Zaka Ullah, etc. v .; Province of Punjab, etc."; 15 W rit Petition No.1603 of 2020 titled "Muhammad Iqbal, etc. v . Province of Punjab, etc.";
16. W rit Petition No.1602 of 2020 titled "Naveed Mukhtar , etc. v . Province of Punjab, etc.";
17. W rit Petition No.1987 of 2020 titled "Khizar Hayat, etc. v . Province of Punjab, etc.";
18. W rit Petition No.2000 of 2020 titled "Muhamad Yasin, etc. v . Province of Punjab, etc.";
19. W rit Petition No.7379 of 2020 titled "Sher Muhammad, etc. v . Province of Punjab, etc.";
20. W rit Petition No.12866 of 2020 titled "Aziz Ullah, etc. v . Province of Punjab, etc.";
21. W rit Petition No.2277 of 2020 titled "Muhammad Farooq, etc. v . Province of Punjab, etc.";
22. W rit Petition No.2278 of 2020 titled "Asif Mehmood etc. v . Province of Punjab, etc.";
23. W rit Petition No.2614 of 2020 titled " Habib Ali, etc. v . Province of Punjab, etc.";
24. W rit Petition No.2745 of 2020 titled "Sabir Hussain v . Province of Punjab, etc.";
25. W rit Petition No.4358 of 2020 titled titled "Jamshed Ali, etc. v . Province of Punjab, etc.";
26. W rit Petition No.4469 of 2020 titled "Aamir Hussain Nasir , etc. v . Province of Punjab, etc.";
27. W rit Petition No.4538 of 2020 titled "Pervez Ahmad, etc. v .; Province of Punjab, etc.";
28. W rit Petition No.4598 of 2020 titled "Jameel Ahmad, etc. v . Province of Punjab, etc.";
29. W rit Petition No.5153 of 2020 titled "Shamood v . Province of Punjab, etc.";
30. W rit Petition No.5477 of 2020 titled "Fazal Elahi, etc. v . Province of Punjab, etc.";
31. W rit Petition No.6437 of 2020 titled "Ghulam Murtaza, etc. v . Province of Punjab, etc.";
32. W rit Petition No.6436 of 2020 titled "Muhammad Younas, etc. v . Province of Punjab, etc.";
33. W rit Petition No.7533 of 2020 titled "Muhammad Ashraf, etc. v . Province of Punjab, etc.";
34. W rit Petition No.7532 of 2020 titled "Zafar Abbas v . Province of Punjab, etc.";
35. W rit Petition No.2266 of 2020 titled "Ishtiaq Ahmad Murtaza, etc. v . Province of Punjab, etc.";
36. W rit Petition No.1308 of 2020 titled "Altaf Hussain Kharalzada, etc. v . Province of Punjab, etc.";
37. W rit Petition No.728 of 2020 titled "Asghar Ali, etc. v . Province of Punjab, etc.";
38. W rit Petition No.595 of 2020 titled " Nazar Abbas, etc. v . Province of Punjab, etc.";
39. W rit Petition No.2576 of 2020 titled "Muhammad Saleem Akhtar , etc. v . Province of Punjab, etc.";
40. W rit Petition No.205 of 2020 titled "Muhammad Khalid, etc. v . Province of Punjab, etc." ; and
41. W rit Petition No.12307 of 2020 titled "Sajid Ali v. Province of Punjab, etc.".