1. JUDGMENTMUHAMMAD BASHIR KHAN JEHANGIRI., J.--The Deputy Commissioner, Dera Ismail Khan, in his capacity as a Collector (Respondent No.1), in pursuance of the recommendations of the relevant Departmental Promotion Committee selected on the 31st December, 1983, the petitioners and 21 other Patwaris as Kanungoes candidates. Being aggrieved of this order respondents 4 to 21 went in appeal before the Commissioner, D.I.Khan Division (Respondent No.1) which was allowed and the case was remanded to the Deputy Commissioner for fresh selection. The grounds which weighed heavily with respondent No.1 in quashing the order of respondent No.3 are as under:-(a)
2. The Committee to be constituted under Notification No.SOS- III(S & GAD) 1-206/74 dated 7-1-1976 to make selection of Kanungos was to be comprised of the Appointing Authority as Chairman with two other members to be nominated by him whereas in pursuance of the order 13-6-1983 of the Deputy Commissioner, this Committee comprised of five members inclusive of the Chairman; and(b) Equity and service rules demanded that promotion should be made from amongst the confirmed Patwaris whereas by virtue of the impugned order of the Deputy Commissioner for unconfirmed Patwaris (inclusive of the petitioners herein) had been selected as Kanungos which was violative of the cardinal principle of promotion that it should be made from amongst the equals other factors like A.C.R etc. Being the same.The petitioners have impugned, by way of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the validity of the order dated 10th September, 1985 of respondent No.1. The petitioners' grievance in nutshell is that no appeal was provided for under the West Pakistan Kanungo Service (Northern Zone) Rules, 1964, hereinafter called the Rules, against the promotion by selection on the basis of merit as such the appeal filed by respondents 4 to 21 and entertained by respondent No.1 was incompetent and in excess of his lawful authority and hence void.3. The only ground pressed upon us by the petitioners' counsel was that after selection of the petitioners and 21 other Patwaris by the Collector of D.I.Khan District as Kanungo candidate under rule 4(2) of the Rules, the Commissioner, D.I.Khan Division, respondent Nol, had no jurisdiction to remand the case to the Collector, for, under the Rules no appeal had been provided for. For this contention, he referred to:-(DGhulam Dastgir..Vs..Commissioner Lahore Division (PLD 1973 Lahore 220) and, (2) Noorul Haq..Vs..Member Board of Revenue N.W.F.P (Writ Petition No.466 of 1973). In these two cases the petitioners' grievance was that Commissioner was not competent to set aside the selection made by the Collector, for, in the Rules no appeal or revision is provided against the selection made.4. In the un-reported judgment of this Court in the case of Noorul Haq, the Division Bench was also referred to an earlier judgment of this Court in Writ Petition No.62 of 1971 fAbdul Wadud..Vs..Member Board of Revenue N.W.F.P and others1. That was also a case challenging identical orders passed by the Commissioner and Member Board of Revenue and the contention of the respondents therein was that under rule 11 of the Rules it has been clearly laid down that "in all matters not expressly provided for in these rules, members of service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them". It appears that the learned counsel appearing for the respondents therein had pressed into service rule 6(l)(iv) of the North West Frontier Province Kanungo Service Rules, 1936.5. In order to facilitate the understanding of the point agitated in Abdul Wadud's case it would be advantageous that section 22 of the North West Frontier Province Civil Servants Act, 1973, is reproduced hereunder in extenso"Right of Appeal or Representation. (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal orapplication shall, except as may be otherwise prescribed, be made within thirty days of the date of such order.(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority which made the order:Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade".3. Right of appeal or review has been conferred by sub-section
(1) of section 22 ibid in respect of any order relating to the terms and conditions of a service where any rules applicable to a civil servant provide for such an appeal or review. If no provision for appeal or review exists under the rules as aforesaid, right of representation has been conferred on the civil servant who is aggrieved by any such order. The proviso, however, bars a representation on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post.4. On analysis of section 22 ibid it would become clear that bar of representation on matters of promotion notwithstanding, a civil servant has got a right to appeal where such a right has been provided for in the rules applicable to him. It is a common ground between the parties that the Rules applicable to the petitioners, (W.P Kanungo Service (Northern Zone) Rule, 1964) provided for no right of appeal. Nonetheless rule 11 of the rules being significant for resolving the proposition is reproduced hereunder."ll.General rules.- In all matters not expressly provided for in these rules members of service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them".5. It has been conceded before us that no new rules have been made applicable to the service. The irresistible conclusion is that right of appeal has not been expressly provided for in the rules and, therefore, it is implicit in the language of section 22 of the N.W.F.P Civil Servants Act, 1973 and rule 11 of the Rules that in all matters not provided for, the members of the service shall continue to be governed by the North West Frontier Province Kanungo Service Rules, 1936. Right of appeal has been conferred by rule 6(1) (d) (vi) of the 1936 Rules. In order to facilitate its understanding rule 6 of 1936 rules is reproduced hereunder in extenso:-"6. (1) Direct appointments to the post of Kunungo will be made by the Deputy Commissioncrs/Political Agents of the District/Agency concerned after a competitive examination conducted by a board of examiners to be nominated by the respective Deputy Commissioner/Political Agent. The board of examiners will hold the examination of all the candidates in their respective District/Agencies on dates to be notified by theDeputy Commissioners//Political Agents and the result will be communicated by the Board to the Deputy Commissioners/Political Agents.(a) he has passed the Matriculation examination or higher examination of a recognised University;(b) he is not less than 19 years and not more than 25 years of age on the lst January of the year in which the examination is notified;(c) Applications to appear at the examination should be addressed to the Deputy Commissioners/Political Agents, concerned;(d) the Examination will consist of the following subjects:-(i) An essay to be written in English as well as Urdu.(ii) Mathcmatics-Airithmciic and Geometry according to standard of Matriculation.(iii) General Knowledge.(iv) An interview or an oral test.Each subject will carry a maximum of I0O marks and the candidates will be required to secure 33 per cent, of the total marks for each subject, including, the interview, and 40, per cent of the aggregate or of all subjects in order to qualify themselves for final selection by the Deputy Commissioners/Political Agents.Right of Appcal.-(v) Candidates for direct recruitment of Kanungos if not selected shall be entitled to appeal to the Divisional Commissioner, within thirty days from the date of communication of the order to the candidates concerned.(iv) Persons not selected as Kanungo candidates from patwaris will be entitled to appeal to the Divisional Commissioner, against the orders of respective Deputy Commissioners/Political Agents".6. It was perhaps in this perspective that in Abdul Wadud's case cited above in which upon analogous facts the learned Division Bench was persuaded to decline to'give any discretionary relief to the petitioner therein. The relevant observations of the learned Division Bench are to the following effect:-"This conclusion ca.n also be sustained under rule 11 of the above Rules of 1964 in which it is clearly mentioned that "in all matters not expressly provided for in these rules, members of service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them.
3. "Dr.Abdur Rahim, the learned counsel for the petitioner did not satisfy us that by virtue of this rule, resort could not be made to rule 6(l)(vi) of the North West Frontier Province KanugoService Rules, 1936, in which case a case of present type a person aggrieved of the order of the Deputy Commissioner could invoke the appellate powers of the Commissioner".7. The ratio in Abdul Wadud's case was that right of appeal to the Commissioner had been conceded to the service by virtue of section 22 of the Act read in conjunction with rule 11 of 1964 Rules and rule 6(1 )(d)(vi) of 1936 Rules.8. Following the dictum a Division Bench of Lahore High Court in Ghulam Dastagir's referred to earlier, this principle was apparently dissented from by another Division Bench of this Court in Noorul Haq's case cited above. After going through the whole report in Ghulam Dastgir's case, we have not able to find if any rules analogous to the Norm West Frontier Province Kanungo Rules, 1936 had or had not been made applicable prior to the 1964 Rules and if there were such rules whether those were brought to the notice of the learned Division Bench of the Lahore Hieh Court, ln this background the principle enunciated in Ghulam Dastgir's case cannot be successfully invoked, lt is queer to note that in Noorul Haq's case, however, the Division Bench of this Court has conveniently ignored the provisions of rule 6(l)(d)(vi) of North West Frontier Province, 1936 which the Division Bench had earlier invoked in declining to grant relief in the writ Petition filed by Abdul Wadud.9. In this view of the matter we are inclined to respectfully follow the dictum of the learned Division Bench of (his court in Abdul Wadud's case which appears to us to be more sound on legal plane. We have also not been able to subscribe to the reasoning in Noorul Haq's case for departing from their earlier dictum in Abdul Wadud's case. In this context we can do no better than reproduce from the report the following paragraph in affirmance of the existance of right of appeal to the service by making resort to rule 6(l)(d)(vi) of 1936 Rules:-"Apart from this position, we are of the view that even if the petitioner could make out a case that the Commissioner had no jurisdiction to sit in appeal over the order of the Deputy Commissioner, we would not have granted him the discretionary relief in the present proceedings for the well-established principle that Article 98 of the Constitution cannot be invoked to perpetuate inequity. The order of the Deputy Commissioner shows that some of the respondents had been ignored by him because their record was not as meritorious as that of the petitioner. But when the matter went up in appeal before the Commissioner, he disagreed with this finding and held that the record of some of the respondents was as meritorious and consequently remanded the case to the Deputy Commissioner for reconsideration. The learned counsel for the petitioner failed to show us that the finding of the Commissioner was erroneous and consequently we do not see as to how we could help the petitioner".10. In the instant case too, even if the petitioner could make out a case that Commissioner had no jurisdiction to entertain the appeal and pass the impugned order, we would have been hesitant to grant him the discretionary relief in the present case for the well-established principle that Article 199 of the Constitution cannot be invoked to perpetuate inequity. The order of the Deputy Commissioner shows that by virtue of the order assailed before the Commissioner for unconfirmed Patwaris, namely, Mamrez- Khan, Ahmad Hussain, Sahib Jan Petitioners and the Alamgir have also been selected as Kanungo candidates. Obviously when inequity was noticed by the Commissioner he remanded the case for fresh selection in the light of his observations. The learned counsel for the petitioner could not point out any flaw on merits in the order impugned before us.11. For the reasons stated above, we are of the considered view that the petitioners have failed to make out a case for interference in our constitutional jurisdiction particularly when the petitioners have participated in the appellate proceedings before the Commissioner without raising any objection to his jurisdiction. This pelioncr is, therefore, dismissed but there would be no order as to costs.