Unnecessary details apart, the petitioner joined as Surveyor on 20.03.1982 in the respondent department and later on he was selected as Sub-Engineer . While serving as Sub-Engineer , the petitioner was also handed over the charge of Assistant Director through order dated 28.01.2004 passed by the Director Administration, LDA.
Respondent No.4 dismissed the petitioner from service on the ground of absence from duty. Being aggrieved of order passed by the competent authority , the petitioner filed an appeal which was dismissed by the Additional Director General, LDA, factum whereof was communicated to the petitioner through letter dated 21.04.2004. The petitioner filed revision petition which was turned down on the ground that no second appeal was provided against penultimate order . Subsequently , the petitioner filed application before the Chief Minister , Punjab for reinstatement in service whereupon a Directive dated 03.01.2006 was issued by the Chief Minister Office, Punjab directing reinstatement of the petitioner on human itarian ground. Instead of implementing the directive issued by the Chief Minister Office, respondent No.4 through letter dated 20.02.2006 asked the Chief Minister office to review the aforesaid order/directive. Again Director General, LDA Lahore (respondent No.1) was directed to implement order dated 03.01.2006 issued by the Chief Minister Office but respondent No.1 did not implement the said order . The petitioner subsequently tried his luck by filing application before the Prime Minister of Pakistan upon which Governor Punjab was directed to look into the matter as per Rules/Policy . The Governor Secretariat Punjab further directed respondent No.1 to proceed in the matter of the petitioner in accordance with Rules/Policy but no action was taken thereon. Again the petitioner filed an application before respondent No.1 for reinstatement in service whereupon respondent No.4 through letter dated 23.06.2017 refused to consider the request of the petitioner , hence, this petition.
2. Learned counsel for the petitioner submits that since Chief Minister was the competent authority as per Section 2 of the Punjab Removal from Service (Special Powers) Ordinance, 2000 ("Ordinance, 2000 "), therefore, order passed by him was to be implemented by the respondents.
Adds that malafide on the part of the respondents is evident from the fact that though the petitioner was appointed by the Director Metropolitan Planner , LDA Lahore on the recommendations of the Chief Metropolitan Planner , LDA (respondent No.2) but the order dismissing the petitioner from service was passed by respondent No.4. Since the impugned dismissal order of the petitioner was passed by an inferior authority (respondent No.2) as compared to the competent authority , the same could not sustain.
3. Learned counsel for the respondent-LD A states that since the petitioner was proceeded under Punjab Removal from Service (Special Powers) Ordinance, 2000 therefore, after availing the remedy of one appeal, the petitioner could not file second appeal, thus the order passed by the Chief Minister Secretar iat, Punjab had no binding force upon the respondents. Adds that after receiving directive from Chief Minister Secretariat, the respondents requested for withdrawal thereof on the ground that Chief Minister does not fare anywhere in the hierarchy of the department especially in respect of service matters.
4. Learned counsel for the petitioner , while exercising his right of rebuttal, submits that since Chief Minister Secretariat directed reinstatement of the petitioner on humanitarian ground, the request of the petitioner could not be treated as second appeal.
5. I have heard the learned counsel for the parties and have also gone through the documents appended with this petition.
6. A perusal of directive issued by the Chief Minister Secretariat shows that reinstatement of the petitioner was directed on humanitarian grounds. The said ground being alien to law on the subject was not justified.
7. During the course of arguments learned counsel for the petitioner put much emphasis on the fact that since order favouring the petitioner was passed by the Chief Minister , the same was to be implemented as it enjoyed the powers of competent authority in terms of Section 2 of the Ordinance, 2000. In this regard, I am of the view that order passed by an Executive, how so high, is not enforceable by the public functio naries until and unless it has the backing of law. The apex Court of the country in case reported as Ikhlaq Ahmed and others v. Chief Secr etary , Punjab, Lahore and others (2018 SCMR 1120), while taking care of an order passed by the Chief Minister through his Principal Secretary in relaxation of Rules, inter alia held as under:- "10. Rule 23 states that "any of the rules" in "any individual case of hardship" and "for special reasons to be recorded in writing" and "to the extent prescribed" by the Chief Minister may be relaxed. However , not a single one of these stipulated preconditions were even mentioned, let alone fulfilled, and were flouted. The novel reason given by the said Principal Secretary to the Chief Minister on June 22, 2007 for relaxing the Contract Appointment Policy and the Rules was to prevent the petiti oners from getting better salaries and perks in the private sector and therefore it was deemed to be in the "public interest" to get them regularized. The same Principal Secretary however on November 13, 2007 contradicted himself and mentioned "compassio nate circumstances of the case and the experience accumulated by them [petitioners] during the period of their contractual appointment" as reasons for relaxing the rules and recommending the petitioners' regulariza tion. Regularization is another euphemism for induction into regular civil service. An incongruous omnibus order which both relaxed the Rules and regularized the petitioners was passed. It did not mention the individual hardship of any petitioner , it was not passed by the Chief Minister , "special reasons" were not recorded in writing by the Chief Minister necessitating relaxing the Rules and the particular rule, that is "any one of the rules" was not mentioned. A completely illegal exercise was carried out in purported exercise of rule 23 of the Rules. Mr. G. M. Sikander , the Principal Secretary to the Chief Minister , implemented the wish of the Chief Minister and did so by resorting to absurd reasons without compunction, and he apparently did so in his enthusiasm to appease and serve the person of the Chief Minister , and not the Province and its people."
Similarly , the Hon'ble Supreme Court of Pakistan in the case reported as Amanulah v. Government of Balochistan and 2 others (2017 SCMR 192) while taking care of order passed by the Chief Minister in respect of terms and conditions of the service of government employee inter alia resolved as under:- "5. --- In instant case it is quite disturbing to note that the then Chief Minister , not only ordered out of turn promotion of the Appellant on purported meritorious service, but also waived off requirement of provisions of Rules 1979, bypassing District Promotion Committee. The act of extending favour and conferring benefit of promotion is not only against the fundamental rights of promotion of his peers on merits but, is also a glaring example of nepotism and undue favour , which act is also opposed to Oath of office of the Chief Minis ter, whereby he pledged to the people of his province to "discharge my duties, and perform my function, honestly , to the best of my ability , faithfully in accordance with the Constitution of Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty , integrity , solidarity , well being and prosperity of Pakistan...." That in all, circumstances, I will do right to all manner of people, according to law, without favour , affection or ill-will" thus favouring the Petitioner with out of turn promotion as Risaldar by passing all those in deserving and waiting for promot ion is against all canon of norms and law , and in abdication of Oath of office thus cannot be sustained."
The august Supreme Court of Pakistan in the case reported as American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449 ), while highlighting the principle that government functionaries are not bound to obey illegal orders of politicians including the Chief Minister , inter alia held as under:- "19. Any Government under the constituti onal dispensation derives power and authority under the constitution itself and or under the legislative instrumentalities as may be conferred by the competent legislature. Any public functionary , how high so ever it may be, is subservient to the Constitution and law and has to act within the boundaries assigned by the Constitution and law framed thereunder . "It is now a well entrenched in administrative jurisprudence of Pakistan that all the public functionaries including the Chief Minister is bound to deal with the public property strictly in accordance with the parameters laid by the law, rules and regulation framed thereunder . In a number of cases including in the cases of Abdul Haq Indher v. Province of Sindh (2000 SCMR 907) and Iqbal Hussain v. Province of Sindh (2008 SCMR 105), where the plot of land was allotted on the direction of the Chief Minister , against the law and the scheme, was struck down by the High Court, which was maintained by this Court and it was categorically held by this Court, that the public functionaries are not bound to follow illegal orders even of the Chief Minister . In the instant cases, as record shows that on mere desire of the then Chief Minister of Punjab, the Member (Colonies) BOR, Punjab doled out valuable "residual evacuee proper ty" at a throw away price to the petitioner -School, knowing fully well that the subject property is not the State land and that the subject evacuee land could only be disposed off through open auction in terms of the Scheme, 1977 and otherwise, he was not at all competent to undertake such exercise, which authority under the Scheme, 1977 vested in the Member , Board of Revenue (Residual Properties)."
Likewise the apex Court of the country in case reported as Khan Muhammad v. Chief Secretary , Government of Balochistan Quetta and others (2018 SCMR 1411), while clarifying that the bureaucrats have to serve the people instead of Ministers, inter alia guided as under:- "17. Bureaucrats are there to serve the people and not the whims of ministers. Ministers are politicians who have been elected by the people and as such are entitled to enact policies on the basis of which they were elected, however , the posting or transfer of a civil servant is not a policy matter . Once a policy is sanctioned the department, headed by the secretary , is to implement it. The making of policy and implementing it after it has been made fall in separate domains. Policy matters are within the political domain and a minister or, as may be the case, the cabinet has complete discretion with regard thereto. But, once policy has been made it has to be implemented by the department, headed by the secretary . And, it is the secretary who is responsible for the efficient administration of the department and to maintain discipline in it. If a dispute arises between a minister and a secretary with regard to the respective scope of their domains or the orders of a minister appear to depa rt from any rule or regulation of established Government policy the secretary has to draw the attention of the minister to it; and, if the minister still disagrees with the secretary then the secretary is required to refer the matter to the Chief Minister through the Chief Secretary ."
If the conduct of the respondents refusing to implement the directive issued by the Chief Minister is considered in the light of afore-referred judgments of the Hon'ble Supreme Court of Pakistan, there leaves no ambiguity that they performed their duties ef ficiently , thus no adverse opinion can be formed against them.
8. While arguing the case, learned counsel for the petitioner put much emphasis on the fact that since the Chief Minister has been declared as competen t authority in terms of Section 2 (aa) of the Ordinance, 2000, no illegality was committed by the Chief Minister Secretariat, while conveying the order issued by the Chief Minister . Perhaps learned counsel has raised said plea in oblivion of the fact that vide Notificatio n No.SOR-III.1-33/94(A) dated 06.12.2000, the competent authority in respect of employees in different scale s were determined. The Chief Minister was not declared as competent authority in respect of the employees falling in BPS-1 to 15. Since the petitioner was serving in BPS-1 1 at the time of his dismissal from service, the Chief Minister could not be considered his competent authority .
9. Now coming to the question of discrimination, I have noted that when order issued by the Chief Minister Secretariat regarding reinstatement of the petitioner was not supported by any law, the implementation of such order in respect of other employees does not constitute discrimination as two wrongs do not make one right.
10. For what has been discussed above, I see no force in this petition which is accordingly dismissed . No order as to costs.