KHALIL-UR-REHMAN KHAN, J.- The facts necessary for the disposal of this petition are that a post of Unani Hakim in Grade 15 fell vacant in Municipal Corporation, Faisalabad. The respondent Corporation through the Employment Exchange invited applications to fill in the said post. There were six applicants, five of whom were already in service of the Corporation while Anwar Jillani respondent No.3 was an outsider. The candidates appeared before the Selection Board comprising the Chairman, Municipal Corporation, Chief Officer and Medical Officer, which selected respondent No.3 Anwar Jillani as the most suitable candidate for the said post and accordingly recommended for his appointment as Unani Hakim vide recommendation dated 14.3.1982. The Corporation then vide Resolution No.270 dated 2.11.1982 accepted the recommendation and approved the appointment of Anwar Jillani as a Unani Hakim. The formal appointment letter was then issued to the respondent on 6.11.1982. The petitioner, who was thus not selected by the Selection Board submitted a representation to the Commissioner, respondent No.1, but the same was rejected vide order dated 24.4.1983. This led to the Filing of the present constitution petition.
2. The main plea in support of the constitution petition as argued by the learned counsel was that the selection and the appointment of respondent No.3 is illegal being violative of Resolution No.253 dated 20.2.1982 read with clauses (c) and (d) of sub-rule (1) of Rule 8 of the West Pakistan Municipal Committees Service Rules 1969. He added that under the aforesaid resolution and rules the method of appointment prescribed is as under:-
(a) Appointments to all the posts above grade I to the extent of 50 per cent were to be made on the basis of seniority-cum-fitness from amongst members of the service in the next below grade/class;
(b) The remaining 50 per cent posts are to be filled in on the basis of initial recruitment from amongst members of the service in the next below grade/class. Seniority being considered only in the case of officials of practically the same standard or merit;
(c) The direct recruitment is to be made only when-no suitable member of the service from both the above categories is available.
(d) The resolution of the House confirming the selection is of no legal efficacy as the House was not made conscious that the post could be filled in only from amongst the members of the service in the next lower grade and that applications could not be invited from the outsiders and resultantly the respondent who is an outsider could not have been allowed to appear before the Recruitment Board what to say of selecting him in preference to the petitioner;
(e) The selection made by the Board was arbitrary as the educational qualifications of the petitioner and the respondent being one and the same the respondent, being a raw hand could not be preferred over the petitioner who had 14 years experience to his credit. Thus no Selection Board acting reasonably and fairly could have preferred the respondent over the petitioner.
3. Mr. M. Aslam Shad, for the respondent Corporation and Mr. Rashid Malik, appearing on behalf of the Advocate-General, for respondent No.1 argued that though the Punjab Municipal Committees Service rules,1969, are still operative yet under the Punjab Local Councils Business Rules, 1980, every selection is to be made by a Selection Committee comprising of the Chairman, the Chief Officer/Secretary and to principal officers of the concerned department named in the proviso to rule 9(c) of the Rules. It was added that the selection made by the Recruitment Committee cannot be substituted by this Court in exercise of extra ordinary constitutional jurisdiction. It was further added that the House having confirmed the selection the appointment of the respondent is valid in law and that the Resolution No.253 stood rescinded by the House itself vide Resolution No.270 confirming the selection of the respondent.
4. I have considered the respective submissions of the parties. The plea that Resolution No.253 has no legal efficacy and that in any case the said resolution stands rescinded as far as respondent No.3 is concerned, has no merit. Admittedly there is nothing on record to show that the question of method to fill the post was considered before taking the decision to advertise the post and to invite applications from the outsiders. Even at the the of placing the matter of selection of respondent No. 3 before the House, attention of the House to the method of recruitment as emeisaged by resolution No.253 was not at all drawn. The House as such was not conscious of the method of recruitment prescribed by Resolution No.253 pursuant to rule 8(2) of the Punjab Municipal Committees Service Rules, 1969. This being the position Resolution No.270 passed by the House approving the selection made by the Recruitment Board cannot be considered to be a Resolution rescinding resolution No.253, even to the extent of respondent No.3. Faced with this situation the learned counsel appearing for the respondents submitted that the matter be remitted to the Commissioner for the consideration of the other questions raised by the petitioner. This is acceptable to the learned counsel for the petitioner. In this view of the matter the order dated 24th April, 1983, of the Commissioner dismissing the appeal is hereby set aside and the appeal shall be treated to be still pending and the same shall be disposed of by the Commissioner, Faisalabad Division, Faisalabad, after hearing the parties within three months. The parties shall be at liberty to raise all the legal points available to them in support of their respective submissions. The writ petition stands disposed of accordingly. The parties are left to bear their own cost.