' This judgment shall dispose of Writ Petition Nos. 516 of 1983 and 1218 of 1983. It shall, however, remain on the file of Writ Petition No. 516 of 1983.
2. The facts are that on the upgradation of three primary schools, run by the Faisalabad Corporation, some new posts of S.S.T., teachers, in N.P.S. 14, were created. The petitioners and the respondents in both the cases, were, already serving as teachers in N.P.S. 8 in the Schools under the Corporation. They were considered for promotion but the petitioners have been ignored and the respondents appointed against two such posts. Aggrieved by these appointments, they have come to this Court for removal of the orders of the authorities below, through judicial review and for issue of a direction to the respondent-corporation, to make the appointments in question in accordance with the service-rules.
3. The circumstances under which the appointments, were, made are that a Selection Committee comprising the Mayor, the Chief Corporation Officer and the Education Officer interviewed the candidates and on 30-11-1981 recommended the respondents as fit for appointment. The Mayor thereupon by his order, dated 20-2-1982 directed the Education Officer to make the adjustment and issue orders accordingly. The report of the Selection Committee and the Mayor's, order, were, then placed before the House, discussed by it, and under its Resolution No. 242 dated 20-3-1982 the appointments, were, approved by the majority. The petitioners, went in appeal, before the Commissioner, Faisalabad, which failed.
4. The argument advanced by the learned counsel for the petitioners to assail these appointments, was, that under Rule 9(c) of the Punjab Local Council (Business) Rules, 1980, the Mayor had the jurisdiction only to appoint and promote the servants of the Local Council, in Grade 1 to 12 and not beyond that and thus, he acted without jurisdiction in appointing the respondents against N.P.S.-14 posts. It was, further contended that since the basic order was, without jurisdiction and void, the entire proceedings conducted on the basis thereof, suffered from the same illegality and the Corporation, in law, could not validate the void order. The learned counsel also referred to Rule 8 of the Municipal Committee's Service Rules 1969 which provides that the vacancies in different grades shall be filled in:-- (a)
(b)
(c) xxxxxx x x x x x x; by promotion on the basis of seniority subject among the members of the Service in the next class; or to fitness from below grade or
(d) XXXXX x.
He then drew my attention to the proceedings, recorded in passing the Resolution, and urged that the petitioners are, more qualified and better fitted for appointments than the respondents and also senior to them but the correct information in this behalf was, not placed before the House, rather, the members were deliberately misguided and falsely given to understand that the respondents were senior in service. According to the learned counsel, the appointments being in contravention of Rule 8, the Resolution carries no sanctity and these are liable to be set aside.
5. These arguments though apparently attractive have no intrinsic merit. It is correct that under the rules, neither Selection Committee, was, competent to make the recommendations nor the Mayor had the authority to order the appointments. However, after the resolution of the House, the recommendations of the Selection Committee and the Mayor's order lose their identity. It has been disclosed during the arguments that the Auditors, objected to the payment of salary in Grade-14 to the respondents, as their appointments were not approved by the Corporation, and thus the matter had to be taken to the House. Whatever may be the reasons, which necessitated placing of this issue on the agenda, the fact remains the recommendations of the Selection Committee were discussed, debated and approved by the House. This is evident from the copy of the proceedings culminating in passing of the Resolution No.
242. These proceedings do give an indication that some of the members complained that the seniority list of the teachers was not put up before the House and thus, it could no` be ascertained that no injustice was done to any of the teachers. Nevertheless, the matter was put to vote and the motion carried.
6. It is the petitioner's own case that the Corporation has the authority to make the respondents' appointments. A body Corporate, expresses its will through a resolution. Resolution No. 242 is demonstra tive of exercise of such an authority by the Corporation. The argument that the House was mis-informed or complete information was concealed from it, need not deserve serious consideration of the Court. Because, if the allegation is correct, it was merely a breach of the privilege of the members of the House. But, the House had exclusive jurisdiction over its internal proceedings and such a matter had to be discussed and adjudged by the House itself. The Court must disclaim jurisdiction, when called upon to determine the issue of breach of such a privilege.
7. It is noteworthy that under Rule 8, ibid, seniority alone is not the foundation for promotion. Rather seniority has been subjected to fitness. I am told by the learned counsel for the Corporation that the record relating to the performance of these teachers, was, before the House. The learned counsel for the petitioner has attempted to demonstrate that the petitioners, as compared with the respondents, are, possessed of better service record. On the other hand, on behalf of the Corporation it is contended that as teachers, the respondents, yielded excellent results. It may be observed, that the determination of fitness for promotion of an employee, is, the sole domain of the employer and the Courts cannot encroach upon this field unless there is an allegation of mala fide.
Such a plea has not been raised by the petitioners. It is true that the proceedings culminating in the passing of the Resolution, make no reference to the fitness of the Respondents, but the members of the House are not presumed to be unaware of the real import of the Rules, governing the impugned appointments. This Court would be loathe to embark upon an enquiry to discover that what really transpired before the House and then strike down the resolution on the strength of the infirmity which these proceedings may be found to have been visited upon.
8. The rule that a superstructure built upon a void order remains void, is, quite well known but its applicability to the instant case, would amount to stretching it too far. No doubt, the recommendations of the Selection Committee and the Mayor's orders thereon, are, not countenanced by the rules but these would be treated as merely a superfluous exercise by which the House was not bound. It could accept or reject the same. In fact these were included in the agenda, alongwith other items and after discussion, the matter carried the vote of the majority.
Had the Mayor's order been implemented a different situation could possibly emerge. However, the record shown to me, manifests that despite the appointment orders issued by the Education Officer, the respondents continued to work in their own scale, until the Corporation by its subsequent Resolution No. 273, dated 11-2-1982, sanctioned to them, the payment of N.P.S.-14 with effect from 6-2-1982, i.e., the date from which they started working as S.S.T, teachers but in their own scales. The recommendations the Selection Committee, therefore, cannot reflect upon the validity of the vote of the House. The respondents' appointment and payment of N.P.S.-14 to them, is wholly attributable to the acts of the Corporation and not to the Mayor. These appointments, therefore, cannot be dubbed as illegal.
9. For all these reasons, I do not find any substance in these writ petitions, which merit dismissal and I but with no order as to costs.
Writ dismissed.