This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeks the following directions:-- (a)Letter dated 23-2-1989 addressed by the Mayor to the Chief Minister may kindly be declared as without lawful authority and of no legal effect and respondent No, 1 be restrained from abolishing the post held by the petitioner in Municipal Corporation, Sargodha.
(b)Respondent No, 2 may kindly be directed to comply with the order of the Chief Minister dated 31-3-1987 and place the case of absorption of the petitioner in LCS cadre before the Chief Minister.
(c)Respondent No, 3 may kindly be directed to release petitioner's withheld arrears of pay and allowances.
(d)That in case the absorption of the petitioner in LCS cadre is not possible he may be directed to be repatriated to his parent organisation i,e, Sargodha Improvement Trust.
(e)Any other relief, this Hon'ble Court, deems just, appropriate and available to the petitioner may also kindly be allowed.
2. The case of the petitioner is that the departmental proceedings were initiated against him on allegations of certain malpractices and mis-appropriation of funds of the Corporation.
Consequently, as a result of the inquiry held against him, he was removed from service. The order of removal was, however, set aside by the Appellate Authority which was upheld by the Revising Authority, with the result that he was reinstated in service. The petitioner then made an application to the Chief Minister, Punjab requesting therein for his absorption in LCS whereupon comments were called for from the Secretary, Local Government and Rural Development Department, Punjab.
On a summary submitted by him, the Chief Minister, Punjab, agreed with the proposal that the petitioner being an employee of the Local Council and not of Government, could not be considered for absorption in Local Councils Service. The petitioner was, however, advised to apply as and when the posts of Accounts Officers are advertised by the Punjab Local Government Board for appointment on merits.
3. The record produced before the Court shows that the Chief Minister approved the said summary on 6-3-1989. There is, therefore, no substance in the submission of the learned counsel for the petitioner that the application of the petitioner was disposed of by respondent No, 2 without submitting the case to the Chief Minister.
4. Learned counsel for the petitioner next contended that the post of Accounts Officer held by the petitioner was abolished under the orders of the Chief Minister on the recommendation of the Mayor, Municipal Corporation, Sargodha, who was not authorised under the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance) and the relevant rules made thereunder and, therefore, the impugned order of abolition is ultra vires. This contention turns on the interpretation of section 36 of the Ordinance and Rule 9 of the Punjab Local Councils (Business)
Rules, 1980. Section 36(1) of the Ordinance provides that the executive authority of a Local Council shall extend to the doing of all acts necessary for the due discharge of its functions under the Ordinance. Under sub-rule (2) ibid, the executive authority of a Local Council vests in and is to be exercised by its Chairman either directly or through the Vice-Chairman or a Member or the Officer of the Local Council to the extent and subject to such conditions and limitations as may be prescribed. The term "Chairman" has been defined in section 3(4) of the Ordinance which includes the Mayor of a Corporation. The Mayor has, therefore, the authority of doing all acts necessary for the due discharge of the functions of the Corporation under the Ordinance. But this power is subject to such conditions and limitations as may be prescribed. The executive powers of the Chairman/Mayor are laid down in rule 9 of the Punjab Local Councils (Business) Rules, 1980. A bare perusal of this rule would show that the Mayor can exercise any power with regard to appointment, promotion, suspension and punishment (including dismissal) compulsory retirement, reduction in rank and removal from service of servants of a Local Council from Grade-1 upto 12. There is no express provision conferring power on the Mayor for the abolition of the post of the Municipal employees. Furthermore, under the aforesaid rules, the executive powers of the Chairman/Mayor is confined to appointment of Municipal servants upto Grade-12 and not beyond it. This being so even if it is assumed that the Chairman/Mayor has implied, power under rule 9 for abolition of any post of a Municipal employee, such a power is confined to servants of the Corporation upto Grade- 12 and not beyond that. In the instant case, the petitioner held the post of Accounts Officer in Grade-16 and, therefore, he had no jurisdiction to abolish the post or seek its abolition from the Chief Minister. This view stands fortified from the provisions of rule 2 of the Punjab Local Government (Schedule of Establishment) Rules, 1981. According to sub-rule (1) of rule 2 ibid, it is incumbent upon every Local Council to draw a Schedule of Establishment in Form `E-1' setting forth the staff to be employed by it. Sub-rule (2) provides that the Schedule drawn up under sub-rule (1) shall be forwarded to the Government for sanction and the Government may sanction such Schedule subject to such modification as may be deemed fit. Sub-rule (3) authorises the Local Council that the Schedule of Establishment sanctioned under sub-rule (2) may be amended from time to time by it with the sanction of the Government. It would thus he seen that in terms of the aforesaid rules, a Local Council is empowered to amend the Schedule of Establishment which includes the power of abolition of a particular post with the sanction of the Government. This follows that two things precedent must be fulfilled before a post may be abolished under the said Rules. Firstly, that a decision is taken by the Local Council and secondly, that sanction is accorded by the Government. In the instant case, the Local Council has admittedly not passed any Resolution for the abolition of the post but the Chief Minister has accorded approval for the abolition of the impugned post on the recommendation of the Mayor of the Municipal Corporation, Sargodha, and therefore, the abolition of the impugned post of Accounts Officer is ultra vires.
5. When confronted with this, Qazi Mohy-ud-Din, leaarned counsel for the Corporation, vehemently argued that the Punjab Local Government (Schedule of Establishment) Rules, 1981, deal with the establishment upto Grade-12 but the power of abolition of posts beyond Grade-12 can only be created or abolished by Government. In the instant case, the Chief Minister, Punjab, has not taken a decision for the abolition of the impugned post suo motu but at the instance of the Mayor, Municipal Corporation, Sargodha, as is apparent from the U.O. Letter bearing No, US-IV/AB- 25/89/4805, dated 15-11-1988, of Ch. Muhammad Iqbal, Special Assistant to the Chief Minister, which reads as follows:-- "On presentation of the enclosed application Chief Minister has been pleased to approve abolition of the post of Accounts Officer, General Bus Stand, Municipal Corporation, Sargodha. Further necessary action may be taken accordingly."
The application enclosed with this letter has been written by the Mayor, Municipal Corporation, Sargodha, which may be usefully reproduced:-- "On the transfer of General Bus Stand the services of Mr. Asghar Ali, Accounts Officer were placed at the disposal of Municipal Corporation, Sargodha. An inquiry was conducted against Mr. Asghar Ali, Accounts Officer, and he was found guilty of serious financial irregularities. Accordingly he was discharged from service.
Mr. Asghar Ali filed a representation before the D.L.G. who reinstated him setting aside the order of discharge from service. The Municipal Corporation went in appeal before the Secretary, Local Government who in the absence of a representation of the Municipal Corporation upheld the order of the D.L.G.
It may be pointed out that the Municipal Corporation has already got the services of Accounts Officer of L.C.G. and the post of Accounts Officer, General Bus Stand is surplus. The Municipal Corporation has vide resolution decided that the services of Mr. Asghar Ali being surplus may be dispensed with. The post of Accounts Officer stood abolished. The Government issued directions that he may be paid salary restoring the post of Accounts Officer, General Bus Stand. Accordingly this office has to pay about Rs,50,(X)0 on account of his salary and still arrears running into thousands have to be paid. The financial position of the Corporaiton is weak and is unable to pay the arrears. Besides this the post of Accounts Officer, G.B.S. is a burden on the exchequer of the Municipal Corporation.
It is, therefore, requested that the post of the Accounts Officer may be allowed to be abolished in public interest."
6. A bare perusal of the letter would show that the grounds which weighed with. the Mayor, Municipal Corporation, Sargodha, to recommend abolition of the impugned post are two-fold:-- (1)the financial position of the Corporation was weak and it was unable to pay the arrears of salary amounting to Rs,50,000 to the petitioner.
(2)The post of Accounts Officer, General Bus Stand, was a burden on the exchequer of the Municipal Corporation.
7. Even if it is assumed that the impugned post of the Accounts Officer of the Municipal Corporation was a burden on the exchequer, such a serious matter ought to have been considered by the Corporation itself and the Chairman had no authority under the Ordinance or the rules framed thereunder to directly B approach the Chief Minister for abolition of the impugned post without placing the matter before the Corporation. The record does not show that the provisions of the Ordinance and the relevant rules were brought to the notice of the Chief Minister when the order of abolition of the impugned post was approved by him. Earlier the Municipal Corporation passed a resolution for abolition of the postion similar grounds, but the Government issued directions not only for the restoration of the impugned post, but also for payment of arrears of salary to the petitioner. The record also does not show that any fresh material was placed before the Chief Minister by the Mayor while seeking abolition of the impugned post. Clearly, the proceedings initiated by the Mayor for the abolition of the impugned post tantamount to colourable exercise of power. There was no legal justification for not paying the arrears of salary to the petitioner notwithstanding direction by the Government to the Mayor as contained in Memorandum No,S.O.
VII-15-58/79-Estt:, dated 19-9-1988 which reads thus:-- "In partial supersession of this Department's memo. of even number dated 28-7-1987 the Government is pleased to sanction the post of Accounts Officer (BPS-16) in General Bus Stand, Sargodha, under the Municipal Corporation, Sargodha, with effect from 15-4-1984. The incumbent may be granted necessary arrears in accordance with the order dated 22-12-1987 passed by the Secretary, Local Government on the review petition filed by the Mayor, Municipal Corporation, Sargodha, which were communicated to the Administrator, Municipal Corporation, Sargodha vide Memo. No, IV-10-23/85, dated 22-12-1987 for necessary compliance."
8. In the circumstances, the refusal to pay the arrears of salary to the petitioner cannot be sustained on any legal or equitable principle.
9. In view of the foregoing discussion, the writ petition is accepted to the extent that the order of abolition of the post of Accounts Officer in the Municipal. Corporation, Sargodha, by the Chief Minister, Punjab, on the recommendation of the Mayor, Municipal Corporation, Sargodha is declared as without lawful c authority and of no legal effect. The result is that the petitioner continues to hold the post of Accounts Officer as communicated by the Government to the Mayor, vide its Memo. No, SO-VII-15-58/79-Estt:, dated 19-9-1988. Respondent No, 3 is directed to release the petitioner's withheld arrears of pay and allowances forthwith. The costs of the writ petition shall be borne by respondent No, 2.