This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order of the Deputy Commissioner, Sialkot, dated 241-1978 whereby appeals/representations of the respondent-employees were allowed, orders of promotion of the petitioners were set aside and the case remanded to the Municipal. Committee, Sialkot, with the direction that The promotions in both the cases be ordered afresh on the basis of seniority-cum- fitness under rule 8(c) of the West Pakistan Municipal Committees Service Rules, 1969".
2. Facts relevant for the disposal of this petition are that two posts in N.P.S-7 in the Municipal Committee, Sialkot, fell vacant in the year 1976. It was decided by the Committee that the said posts would be filled by promotion on the basis of seniority-cum-fitness from amongst the employees in N.P.S-6 in accordance with rule 8(c) of the West Pakistan Municipal Committees Service Rules, 1969. A Selection Board comprising the Administrator and the Chief Officer of the Committee was constituted which in its meeting held on 24th of August, 1976 after consulting the service record of the senior most officials in N.P.S-6 recommended Allah Ditta petitioner and one Muhammad Sadiq (not party in the present proceedings) for the two posts in N.P.S-7 vide Annexure A. They were at serial Nos,1 and 3 respectively in the seniority list. Muhammad Rafiq respondent No, 4 who at the relevant time was working as a Water Rate Inspector in N.P.S-6 and was at serial No,2 in the seniority list was not considered fit for promotion. The Recommendees were promoted in N.P.S-7 vide Office Order 71 dated 24-8-1976 (Annex B). Muhammad Rafiq challenged this promotion order in an appeal/representation filed before the Commissioner, Lahore Division, on 23-11-1976.
Consequent upon the promotion of Allah Ditta and Muhammad Sadiq in N.P.S-7, two posts in N.P.S- 6 became available which posts the Selection Board decided to fill in by selection on merits in accordance with rule 8(d) of the aforementioned rules. After making necessary exercise, the Selection Board recommended Imtiaz Ahmad petitioner No,2 and Tariq Javed (not party in these proceedings). It was observed by the Selection Board that both these officials were graduates and they deserved the promotion. The recommendation was made on 30-8-1976 vide Annex C. This was followed by Office Order 79, dated 2-9-1976 (Annex D) whereby Imtiaz Ahmad petitioner and Tariq Javed were promoted in N.P.S-6. Ahmad Jan Butt respondent No,5 herein who was at serial No,5 in the seniority list feeling aggrieved with the promotion of Imtiaz Ahmad petitioner and Tariq Javed in N.P.S-6 preferred an appeal/representation before the Commissioner.
3. Both the appeals finally came to be heard by the Deputy Commissioner, Sialkot, who while dealing with the appeal preferred against the promotions in N.P.S-7 noted that Allah Ditta petitioner was a non-matriculate. He joined service as Octroi Moharrir in the scale of Rs,40-2-60 on 20-12- 1947. He was promoted in the grade of Rs,60-4-80-5-100 on 23-8-1957 and "was further benefited with promotion in the grade of Rs, 125-7-195/8-275 on 6-5-1966." The Deputy Commissioner then referred to rule 21 of the West Pakistan Municipal Committee Octori Rules, 1964 and relying particularly on its second proviso which enacted that a non-Matriculate shall not be entitled to a promotion more than one step above the position held by him at the time of the enforcement of these Rules held that "As Mr.Allah Ditta Bhatti, had already availed the chance of one step promotion in the Grade Rs,125-7-195/8-275 on 6-5-66 above the position held by him at the time of the enforcement of the rule, referred to above, being non-Matriculate, he was not eligible for second promotion in National Pay Scale No,7 on 24-8-1976." Deputy Commissioner further observed that his service record was quite unsatisfactory "as it contained adverse reports of doubtful integrity and to indulge in party politics etc.". As regards Muhammad Sadiq, the other promotee in N.P.S-7, the Deputy Commissioner noted that though he was a Matriculate, his record showed that he was fined twice and as such it was observed that he should not have been given promotion in preference to his senior official viz. Muhammad Rafiq respondent who was Matriculate and "whose service record was thoroughly good." Taking this view of the matter, Deputy Commissioner allowing the appeal of Muhammad Rafiq respondent set aside the order of the Municipal Committee dated 24-8-1976 whereby Allah Ditta petitioner and Muhammad Sadiq were promoted in N.P.S-7 and remanded the case for fresh decision.
4. The appeal in the matter of the promotions in N.P.S-6 was also accepted by the Deputy Commissioner holding that Ahmad Jan Butt, the appellant before him having joined as Octroi Moharrir on 16-10-1963 was at serial No,5 in the seniority list as against the promotees who were at serial Nos, 62 and 67. He had unblemished record of service. There was thus no justification to select the employees at serial Nos, 62 and 67 "by ignoring the rights of a senior most experienced hand who held seniority at No, 5Higher qualification of being Graduate did not debar a senior hand from promotion when he was fully qualified for the same." The Deputy Commissioner further held that the Selection Board was wrong in making selection under rule 8(d) for filling the posts in N.P.S-6. Order of the Administrator of the Municipal Committee regarding the promotion of Imtiaz Ahmad petitioner and Tariq Javed in N.P.S-6 was accordingly set aside and the case remanded with the aforementioned direction. Both the appeals were thus disposed of vide order dated 24-1-1978 (Annex E) impugned herein. Municipal Committee, it is stated, had filed a petition before the Deputy Commissioner for recalling his aforementioned order on the ground, inter alia, that it was not impleaded as a party in the appeal/representation and that Allah Ditta Bhatti petitioner was working as 2nd Clerk and was not covered by the Octroi Rules. The application was rejected by the Deputy Commissioner vide Annex F. Petitioner thereafter filed the instant petition.
5. I have heard the learned counsel for the petitioner as also learned counsel appearing for respondent - Municipal Committee. No one has turned up for the private respondents although a notice is shown to have been sent to their counsel, an outside Advocate.
Learned counsel for the petitioner contended that reliance by the Deputy Commissioner on the second proviso to Rule 21 of the West Pakistan Municipal Committees (Octroi) Rules, 1964 for holding that Allah Ditta petitioner was not eligible for promotion in NPS-7 was misconceived. In the submission of the learned counsel, provisos (first and second) were added to Rule 21 by Notification dated 20-7-1968 and that being so, the promotion earned by petitioner No,1 in the year 1966 could not be taken into consideration for the purpose of the bar contained in the second proviso. In order to appreciate the contention of the learned counsel, reference may usefully be made to Rule 21 which is reproduced hereunder:-
21. No person shall, after coming into force of these rules, be appointed for the first time - (a)as an Octroi Peon, unless he is literate; (b)as an Octroi Clerk, unless he is a Matriculate; (c)as an Octroi Inspector or Assistant Octroi Superintendent, unless he is a Matriculate, and has at least five years' service under a Municipal Committee.
(d) as an Octroi Superintendent, unless he is a Graduate or is a Matriculate with at least ten years' service, under a Municipal Committee: Provided that any person in the service of the Octroi Department of a Municipal Committee before the enforcement of these Rules shall not be deemed to be disqualified for the post which he is holding at the time or for any promotion merely on the ground that he does not possess the prescribed qualification: Provided further that in case of promotion such person shall not be entitled to a promotion more than one step above the position held by him at the time of the enforcement of these rules."
6. The aforementioned rule prescribed the basic minimum qualifications for direct appointment to certain posts in the Octroi Department of Municipal Committee and it provided that no person shall be appointed to these posts for the first time unless he was possessed of the prescribed qualifications. The first proviso, however, saved the incumbents of these posts who though not possessed of the qualifications prescribed by rule 21 had been appointed to the said posts before the enforcement of Octroi Rules of 1964 and it was also provided therein that they would not be disqualified for any promotion merely because they did not possess the prescribed qualifications.
Second proviso, however, restricted the scope of promotion of such persons by providing that they shall not be entitled to a promotion more than one step above the position held by them at the time of the enforcement of these rules. Explained in concrete terms, the effect of the second proviso is that if a non-Matriculate had joined the service as Octroi Clerk and he was holding that post at the time of the enforcement of Octroi Rules, 1964, he will be entitled to only one step promotion i,e, as an Octroi Inspector and not beyond that. The restriction/limitation contained in the second proviso, in my view, would apply irrespective of the fact whether he had got promotion as Inspector before or after the promulgation of the said proviso. There was no retrospectivity involved in the proviso at all. Argument of the learned counsel for the petitioner that any promotion earned before the insertion of the proviso in the Rule would not fall within the purview of the proviso does not appear to have any force.
7. Question, however, still remains whether petitioner No 1 was at all governed by the Octroi Rules. It is no doubt true that he joined the service of the Municipal Committee as Octroi Moharrir but there is nothing on the record to show that he remained in the same cadre and was promoted to any higher post or grade in that very cadre. On the contrary, case of petitioner No,1 is that he was working as 2nd clerk in the General Branch of the Municipal Committee in 1976 when he was given promotion in N.P.S-7. He has made a specific averment in this behalf in para 2 of the writ petition which has not been specifically denied by the respondents. Similarly, respondent No,1 has also asserted in para 1 of the writ petition that he was promoted as Municipal Iawyer's clerk on 23-8- 1957 and was further promoted as Tch Bazari Inspector with effect from 6-5-1966. This assertion, too, has not been specifically controverted by the respondent. In the circumstances, it, prima facie, appears that petitioner No,1 was no more in the Octroi Department at least after 23-8-1957 when he was promoted as Minicipal Lawyer's clerk. It may pertinently be pointed out at this stage that the hierarchy of the Octroi staff consisted of the Taxation Officer as head of the Taxation Department including Octroi, Octroi Superintendent (incharge of the Octroi Branch), Assistant Octroi Superintendent, Octroi Inspectors, Octroi Clerks and Octroi Peons. Refer Rules 13 to 20 of the Octroi Rules, 1964. The Deputy Commissioner does not appear to have attended to this important aspect of the matter and he mechanically dealt with the case of petitioner No,1 with reference to Octroi Rules.
8. Even if it be assumed for the sake of argument that the Octroi Rules were applicable to petitioner No,1 (though as noted herinabove Municipal Committee itself is stated to have pleaded before the Deputy Commissioner that petitioner No,1 was not covered by the said Rules. Refer para. 10 of the writ petition), the second proviso to rule 21 would still have no application to his case. It is manifest from a plain reading of rule 21 that it applied to the specified post of Octroi staff namely Octroi Peon, Octroi Clerk, Octroi Inspector/Assistant Octroi Superintendent and Octroi Superintendent. The restriction of one step-promotion envisaged in the second proviso in the context quite clearly referred to the promotion to the next higher post in the hierarchy of the aforementioned specified posts. It is nobody's case that petitioner No,1 who was initially appointed as an Octroi Clerk was ever promoted to the next higher post of Octroi Inspector. His promotion in the higher grade on 6-5- 1966 and then in N.P.S-7 on 24-8-1976 was not in the hierarchy of the Octroi Staff and, therefore, it could not be pressed into service for the purpose of the second proviso. Needless to observe that the second proviso being a restrictive provision has to be construed strictly. In this view of the matter, finding of the Deputy Commissioner that since petitioner No,1 was promoted in the higher grade on 6-5-1966, he being non-Matriculate was not eligible for second promotion in N.P.S-7 by reason of the second proviso cannot be sustained.
As regards the observation of the Deputy Commissioner about the adverse reports of doubtful integrity of petitioner No,1, Chief Officer of the Municipal Committee present in Court stated that there was no such entry regarding the integrity of the said official and the only adverse entry in the recent past was that of a warning. Be that as it may since the view taken by the Deputy Commissioner regarding the ineligibility of petitioner No,1 for promotion to higher grade by virtue of the second proviso has been held to by unsustainable, case of petitioner No,1 shall have to be re- examined by the relevant authority in the light of the observations made above and when doing so, he will also determine his fitness for promotion with reference to the service record. It was pointed out by the learned counsel for the petitioners that petitioner No,1 is no more in service as he has already been retired. Even so, question as to whether he was eligible for promotion to N.P.S-7 shall have to be decided afresh for the purpose of pensionary and other benefits. Needless to observe that if the Authority concerned finds him eligible and fit for promotion, the order of promotion will of course be effective from the date he was initially promoted in N.P.S.-7.
9. As regards the case of Imtiaz Ahmad petitioner, Deputy Commissioner appears to have proceeded on the assumption that it was a case of promotion which should have been decided under Rule 8(1)(c) of the West Pakistan Municipal Committees Service Rules, 1969 and held that the rights of the senior-most employee should not have been ignored. Contention of the learned counsel for the petitioner, however, was that it was a case of selection on merit which was covered by clause (d) of rule 8(1) whereunder seniority is to be considered only amongst the officials of almost equal merit. According to the learned counsel, petitioner being a Graduate was given promotion on merit and respondent No,5 though senior could not compete with him. Contention of the learned counsel appears to be correct as it is supported by the provisions of Rule 8 which is reproduced hereunder for facility of reference:- "(8) Methods of recruitment.--(1) Vacancies in the different classes and grades of a Service shall be filled by- (a)initial recruitment, or (b)transfer of a person in the service of Government, are subject to the provisions of Article 44(5) of the Basic Democracies Order, 1959 of a Local Council or any other Municipal Committee, or (c)by promotion on the basis of seniority subject to fitness from among the members of the service in the next below grade or class, or (d)selection on merit from among members of the Service in the next below grade or class, seniority being considered only in the case of officials of practically the same standard of merit.
(2)The Municipal Committee shall determine by which of the methods specified in sub-rule (1), the vacancies in various posts shall be filled.
(3)Vacancies to be filled by initial recruitment shall be reserved for bona fide residents of the Municipality."
The aforequoted rule lays down different methods of recruitment in clauses (a) to (d) and sub-rule
(2) empowers the Municipal Committee to determine by which of the said methods, the vacancies in various posts arc to be filled. Now, in the instant case, Administrator and the Chief Officer of the Municipal Committee examined the record and assessed the calibre of the senior officials in N.P.S- 5 and found that the general standard of their work and conduct was not such that they could improve the efficiency of the municipal work. It was, therefore, decided by them that in order to improve the efficiency of the work and to have some efficient and better educated officials, the posts in N.P.S-6 be filled up by selection on merit in accordance with clause (d) of rule 8(1) of the aforesaid Rule. Having so decided, petitioner was recommended for promotion on merit as he was a graduate. Refer Annex C. It may pertinently be observed that the Administrator of the Municipal Committee was fully competent to decide the method by which the vacancies in N.P.S-6 were to be filled. Selection of the petitioner was Also based on consideration of merit of which the selection board was the sole Judge. Deputy Commissioner was clearly wrong in holding that since the posts in N.P.S-7 were filled by promotion on the basis of seniority-cum-fitness as provided in clause (c) of Rule 8(1), the vacancies in N.P.S-6 should also have been filled on the same basis and under the same provisions. It appears that the' officer did not take notice of sub-rule (2) and the method of filling the vacancies by selection on merit as provided in clause (d) of rule 8(1). The impugned order of the Deputy Commissioner directing that the posts in N.P.S-6 be also filled on the basis of seniority-cum-fitness under rule 8(1)
(c) is, therefore, unsustainable in law and the same is declared to be without lawful authority and of no legal effect. Resultantly, the promotion of petitioner No,2 through selection made by the Administrator of the Municipal Committee vide orders Annexures C and D remains intact.
' Upshot of the above discussion is that this writ petition is allowed, the impugned order of the Deputy Commissioner dated 21-1-1978 (Annex E) is set aside and the case qua Allah Ditta petitioner No,1 is remanded to the Deputy Commissioner/appellate authority for passing fresh orders in accordance with law and in the light of the observations made hereinabove. There will be no order as to costs.