1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, dated the 4th January 1966, in Writ Petition No. 1539 of 1964. By this judgment, the writ petition of the appellant was dismissed in limine.
2. The appellant joined the District Board service in the District of Jullundur in the year 1929 as J.V.
3. Teacher. He worked in that capacity till 1947. On the 20th October 1947, he joined Municipal High School, Burewala, as Junior Vernacular Teacher. In December 1951, he was granted scale of Senior Vernacular Teacher i.e., Rs.64-100. His salary was fixed at Ra. 72 P. M. From the 11th September 1952.
4. On the 11th September 1960, a vacancy occurred in the selection grade of S. V. Teacher in his School. He crossed his efficiency bar and was granted a provisional selection grade post in the scale of Rs.140-8-220. On the 6th July 1961, the Headmaster of the High School recommended that he may be granted the selection grade with effect from the 6th July 1961. On comparing claims of the various S. V. Teachers, the Chairman, Municipal Committee, Burewala, finally decided the grant of selection grade in favour of the appellant.
5. Respondent No.1 made a representation to the Controlling Authority, Municipal Committee, Burewala, namely, the Commissioner, Multan Division, questioning the eligibility of the Chairman of Burewala Committee to sanction the selection grade in favour of the appellant. The controlling authority remanded the case for approval of the Municipal Committee, Burewala. Later on, the Municipal Committee, Burewala, vide its Resolution No. 354 dated the 23rd January 1962, confirmed the action taken by the Chairman of the Municipal Committee, Burewala and the award of the selection grade was approved by the Municipal Committee.
6. Respondent No. 1 again approached the Controlling authority, the Commissioner, Multan Division, challenging the order of the Municipal Committee. The Controlling authority, after hearing the parties, dismissed the appeal on the 5th February 1963.
7. On the 2nd October 1964, the Headmaster of the School informed the appellant that the Provincial Government had interfered in the matter and had set aside the order of awarding the selection grade to him. Accordingly, his grade was withdrawn with retrospective effect. It was also ordered by the Provincial Government that since the selection grade was initially awarded to the appellant on the basis of wrong entries in his service book, the same should also be rectified and inter se seniority of the teachers concerned should be re-adjusted. The appellant challenged this order in Writ Petition No. 1539 of 1964 on the ground that the Provincial Government was not competent to interfere and its order was without jurisdiction. The High Court repelled this contention and dismissed the writ petition in limine.
8. Special leave was granted in this case to consider the legality of the impugned order.
9. Before coming to the merits of the case, it will be proper at this stage to consider the application of Hafiz Rehmat A.I intervener for impleading as a party in the present appeal. His contention is that he has received a letter dated the 14th April 1965 from the Chairman, Municipal Committee, Bure-- wala, that the Committee is not in a position to decide the question of grant of selection grade of S. V. Teacher till the present appeal is disposed of. The intervener Hafiz Rehmat A.I has admitted that he filed a writ petition against the order of the Municipal Committee and that was dismissed in 1966. The facts fn his case are that he joined service as teacher in District Board, Sahiwal in 1942. In 1952, he was appointed in M. B. High School, Burewala as teacher at a salary of Rs.100. He took over charge of his post on the 22nd July 1952. He crossed his efficiency bar in 1955. The Examiner, Local Funds Accounts, on reference to him about the fixation of the petitioner's pay, gave a decision that he will not be granted selection grade till after I1 years from the date of his appointment. The intervener challenged this order in writ petition. In our opinion, the case of the intervener is quite different from the one under consideration and he is not a necessary party to the appeal in question. His application is, therefore, rejected.
10. Now coming to the merits of the case, it will be noticed that the High Court dismissed the writ petition of the appellant on the following obser--vation:- "From a report called for from the Municipal Committee, it appears, however, that the Provincial Government made the impugned order under rule 42 (c) of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963, which provides for a revision petition to the Government against any order made by the Commissioner, as the Controlling authority."
11. It will thus be seen that the learned Judges of the High Court considered that the above rule provided for revision petition to the Government against any order made by the Commissioner as the Controlling authority.
12. Mr. Raja Muhammad Anwar, learned counsel for the appellant, contend--ed that rule 42 (c) of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, applies to cases of punishment only and does not authorise the Government to interfere with the order of the Controlling authority in any other matter. The contention of the learned counsel appears to be well founded. Rule 42 of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963, reads as follows:- "Rule 42.-The appellate authority for the purposes of these rules shall be -
(a) the Chairman of the Municipal Committee, where the authority is an officer of the Municipal Committee other than the Chairman or the Vice-Chairman;
(b) the controlling authority where the authority is the Municipal Committee, the Chairman, or the Vice-Chairman; and
(c) Government, where the authority is the Controlling authority."
13. This rule is to be read with rule 40 of the above-mentioned Rules. It reads as under:- "Rule 40.- A Municipal servant on whom a penalty has been imposed under rule 36, 37 or 38 may, within ninety days of the order in question, appeal to the appellate authority specified in rule 42."
14. It will thus be noticed that rule 42 applies only to cases in which a penalty has been imposed under rule 36, 37 or 38. Admittedly, in the present case, no penalty has been imposed on the appellant. He was only granted selection grade. The case is not covered by rule 36, 37 or 38. In these circumstances, the High Court was not justified in relying on this rule and dismissing the writ petition to limine. In our opinion, the Provincial Government had no authority to interfere in the matter and the Commissioner's order was final.
15. A decision reported in A.I Muhammad v. Muhammad Ramzan and others (1969SCMR46) was brought to our notice in which it was held that under the Municipal Administration Ordinance No. X of 1960, the Provincial Government is competent to interfere as Controlling Authority under section 110 of the Municipal Administration Ordinance. This decision has no application to the facts of the present case. In the present case, the Controlling authority was the Commissioner. This is clear from the Gazette Notification of West Pakistan, Extraordinary, dated the 24th November 1962, which is as under and appears at page 20 of PLD 1963 (Notification Part) ;- "In pursuance of the provisions of clause (1) of subsection (1) of section 3 of the Municipal Administration Ordinance, 1960 (X of 1960), and in supersession of the Health, Welfare and Local Government Department Notification No. E&A (HLG)-13/20-60, dated the 21 December 1960, the Governor of West Pakistan is pleased to direct that the Commissioners shall be the Controlling Authority in respect of all Municipal Committees, including Municipal Corporations within their respective Divisions."
16. This notification shows that the Commissioners were the Controlling Authority of the Municipal Committees including Municipal Corporations within then respective Divisions.
17. After carefully considering the arguments of the learned counsel for the appellant, we are satisfied that the Provincial Government was not competent interfere with the order of the Commissioner and that order is without lawful authority.