' Naseer Ahmad, the petitioner, was appointed as an octroi clerk in the Municipal Committee, Bahawalnagar, on 3-5-1986. The petitioner took over the charge of the post of an octroi clerk and had been performing his duty efficiently and honestly. Respondent No, 2 filed an appeal against the appointment order of the petitioner which was dismissed on 12-5-1987 by the Deputy Commissioner, Bahawalnagar.
2. Muhammad Iqbal, respondent No, 2, continued to pursue the matter and obtained the impugned order dated 27-5-1988 passed by respondent No, 1 by virtue of which the appeal filed by him was accepted in the terms that he should be given a post within two months of the impugned order and if no post was available to him within two months then he should get the post of the petitioner according to letter No, 11-70/(43)6-(Admn.) LSE, dated 23-9-1970. Against the said order, this Constitutional petition has been moved.
3. It may be noted that according to the facts of this case, Muhammad Iqbal was serving as a Naib-Qasid in the Municipal Committee, Bahawalnagar. On the leave vacancy caused by Saeed Ahmad, an octroi clerk, he was temporarily appointed as an octroi clerk in that leave vacancy.
Muhammad Iqbal was once suspended from service for over-charging and on account of his unsatisfactory record and after the conclusion of the leave of Saeed Ahmad, he was reverted to the post of Naib-Qasid. The Deputy Commissioner, Bahawalnagar, by referring to the aforementioned Notification passed the impugned order that he should be posted in place of the petitioner if Muhammad Iqbal did not get any employment in the Municipal Committee as an octroi clerk within two months.
4. The first appeal lodged by Muhammad Iqbal was unsuccessful and obviously on the same point, the second appeal did not lie. Appeals are provided in section 166 of the Punjab Local Government Ordinance, 1979 which states that any person aggrieved by any order passed by a local council or its Chairman (or its Vice-Chairman or Officer) in pursuance of the Ordinance or the rules or bye laws, may appeal to such authority, in such manner and within such period as may be prescribed and any order passed in appeal shall be final. Rules have been framed under the said Ordinance which have been called as Punjab Local Councils (Appeal) Rules, 1980. According to para. 3 of Rule 1, of these rules, they shall apply to all appeals preferred against orders passed under the Punjab Local Government Ordinance, 1979, and the rules or bye-laws framed thereunder except appeals by servants of Local Councils in matters relating to their service.
5. According to the aforementioned rule, no appeal lies in matters relating to the service of the employees of the Local Government. In this manner, the appeal did not lie to the Deputy Commissioner in matters relating to the service of the petitioner and Muhammad Iqbal.
Muhammad Ashraf v. Muhammad Siddique and 2 others PLD 1977 Lah. 1082 also enunciates the same principle.
6. It has been contended that the Punjab Local Councils (Appeal) Rules, 1980, contradict section 166 of the Punjab Local Government Ordinance, 1979, and appeal should have been provided in all matters. I do not countenance this argument because Rule 1 of the Punjab Local Councils (Appeal)
Rules, 1980, is not inconsistent with section 166 ibid. There are clear rules that an appeal by the Deputy Commissioner cannot be heard in matters relating to their service. The implication behind this exception seems to be that service matters are dealt with by the Efficiency and Discipline Rules.
7. Again Muhammad Iqbal took refuge under Notification No, 11- 70/(43)6-(Admn.) LSE, dated 23-9- 1970 which bars direct recruitment of the employees in a Municipal Committee. This Notification cannot be given the status of law or rules because the Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983, have been framed which envisage initial recruitment, recruitment by promotion or transfer by the authority. The said Notification is, therefore, ultra vires of the said Rules and does not merit any consideration.
8. The appeal obviously did not lie because Muhammad Iqbal was not penalized. He was appointed against a leave vacancy and he was to revert to the post of a Naib-Qasid on the termination of the leave vacancy.
9. This being so, the impugned order is quashed. The Municipal Committee may, however, appoint Muhammad lqbal to the post of an octroi clerk whenever it occurrs on the basis of efficiency-cum- fitness and according to Punjab Local Council Service (Appointment and Conditions of Service)
Rules, 1983. Due to legal complexities involved in this writ petition, I make no order as to costs.