' In this Constitutional petition, the order dated 25-9-1988 passed by respondent No,3 and consequential order dated 28-9-1989 passed by respondent No,1 demoting the petitioner to the post of Octroi Clerk and also order dated 3-10-1989 for suspending the petitioner from service under Efficiency and Discipline Rules, 1981 have been challenged.
2. The facts giving rise to this writ petition shortly stated are that the petitioner who joined the service of respondent No,1 as Octroi Clerk was working as employee of the said respondent in the said capacity. A post of Octroi Inspector fell vacant and respondent No, 1 through notice published in "Daily Mashriq" invited applications from public-at-large having qualifications mentioned therein for the said post. It appears that this post was to be filled through direct recruitment and not through promotion. It was expessly stated in this advertisement that those persons who were already serving in any department could make application through their departments where they were serving. The petitioner was one of the applicants who was selected by the Selection Committee and the Selection of the petitioner was also approved by the House of Town Committee respondent No,1 in its meeting held on 8-12-1986 through a resolution and the petitioner was appointed as Inspector Octroi in B.P.6. This resolution was implemented and acted upon as the petitioner joined the said post and started working against the same.
3. One Syed Akbar Ali Shah, feeling aggrieved, of the resolution of Town Committee approving the report of the Selection Committee for the selection of the petitioner and his consequential appointment, made an application before respondent No,3 under section 156/157 of Local Government Ordinance, 1979. His main grievance was that he was senior to the petitioner and instead of promoting him to the said post, the petitioner was appointed. It was his case that the post should have been filled by promoting a person serving in the lower grade who was the senior most. Likewise one Muhammad Aslam also made similar application in which he challenged the act of respondent for inviting applications for appointment against the said post. The application of Muhammad Aslam moved before respondent No,3 was sent to Assistant Director Local Government by respondent No,3 as in his opinion he was not vested with powers to decide that application whereas the application moved by Syed Akbar Ali Shah was decided by him through order dated 25-9-1988 and the case was remanded to the Chairman, Town Committee to decide the question of appointment of any person against the said post according to rules and keeping in view the seniority of the employees. In pursuance of this order, the respondent No,1 passed a resolution on 26-8-1989 to implement this order and consequently an order was issued by the Chairman on 28-9-1989 demoting the petitioner to the post of Octroi Clerk which he was holding prior to his appointment as Octroi Inspector. Subsequently, through another order respondent No,4 Muhammad Aslam was promoted and appointed as Octroi Inspector in place of the petitioner. It requires mention here that the application of respondent No,4 moved by him before Deputy Commissioner which transferred to Assistant Director, Local Government against the act of respondent No,1 of inviting applications from public to fill up the said post through appointment by direct recruitment had already been rejected on 28-8-1988.
4. The petitioner in the first instance filed a civil suit in which he challenged the legality of order dated 25-9-1988 passed by respondent No,3 but in view of order dated 28-8-1988 passed by Assistant Director, Local Government in which he upheld the decision of respondent No,1 of inviting applications through advertisement from public to fill up the said post by direct recruitment, therefore, the petitioner felt that his grievance stood redressed and he made statement for the withdrawal of the suit as specifically stating that his grievance had been redressed. However, when order dated 25-9-1988 passed by respondent No,3, was implemented by demoting the petitioner as aforementioned he filed this writ petition. An interim order in this writ petition was passed and a stay order was issued. According to the petitioner the respondent No,1 passed an order for suspension of the petitioner from service which was shown to have been passed on 10-3-1985 whereas according to petitioner this was passed subsequently but was ante-dated in order. To give impression that it had already been passed when this Court granted him interim relief on 4- 10-1989 when the writ petition was admitted.
5. I have heard learned counsel for the parties. It is manifest from the provisions of Local Government Ordinance, 1979 and the rules framed thereunder and in particular the Punjab Local Council (Appeal) Rules, 1980 that no right of appeal has been provided to the servants of the Local Councils in matters relating to their service. This was common ground between both the parties that in the present case the resolution passed and order issued in consequence thereof by respondent No,1 for appointment of petitioner as Octroi Inspector, could not be assailed in appeal by any servant of the Local Council on any ground including the ground that he being senior was illegally ignored. However, under section 156 of the said Ordinance general supervisory powers are vested in the Government to pass any of the following orders:--
(a) Quash the proceedings;
(b) Suspend the execution of any resolution passed or made by the Local Council and
(c) Prohibit the doing of anything proposed to be done.
' The power to pass orders in the nature as contemplated in clauses (b) and (c) above, have been delegated by the Government to the Deputy Commissioner through Notification No, S.O.L-1-18/79, dated 6-2-1980 in exercise of powers conferred on the Government under section 170 of the Ordinance. Through another Notification No,S.O.V-5-7/81, dated 28-10-1981 the powers to pass order of the kind contemplated by clause (a) of section 156 has been delegated to the Divisional Commissioner.
6. Learned counsel for respondent No,1 admitted that this was the position regarding delegation of powers under section 156 of the Ordinance. He also candidly conceded that Assistant Director has been empowered only to deal with the application/representations appeals arising from disciplinary proceedings and orders passed in such proceedings against servants of the Local Council imposing any penalty on them and he was not delegated power of the Government under section 156 of the Ordinance.
7. From the close scrutiny of the provisions of the Ordinance as also notification issued thereunder regarding delegation of powers it is manifest that neither the Assistant Director was vested with any authority to deal with and dispose of an appeal filed by Muhammad Aslam and pass an order dated 28-81988 nor the respondent No,3 was vested with any authority or power to entertain application of Syed Akbar All Shah under section 156/157 of the said Ordinance as it was directed against resolution of respondent No,1 approving the recommendations of Selection Committee relating to selection of the petitioner as Octroi Inspector and for making his appointment against the said post because the power of Government to quash such proceedings under clause (a) of section 156 had been delegated to Commissioner and not to Deputy Commissioner. Respondent No,3 i,e, the Deputy Commissioner was only delegated the powers under clauses (b) and (c). The occasion to exercise this delegated power under clause (b) could not arise because the resolution passed by respondent No,1 for appointment of petitioner had already been implemented and carried out as the petitioner had already joined the post. The power under clause (c) could be exercised only before the Town Committee could pass any order or resolution which was still proposed. It appears that the power under clauses (b) and (c) relates to passing of orders of interim nature so that any action which was proposed to be done may be stopped or that if a resolution had already been passed, its implementation could be prohibited so that it may not attain finality on account of its implementation. The power under clause (a) is all emberacing and under this clause the Government or its delegatee could certainly pass order for quashment of any proceedings including any resolution passed by the Local Council and any order issued in consequence thereof. The order dated 25-9-1988 passed by respondent No,3 on application of Akbar All Shah through which the resolution passed by respondent No,1 approving the selection of the petitioner as Octroi Inspector and making his appointment was set aside and the case remanded for fresh decision in the said matter, could only be passed by Commissioner because it fell within the scope of power vested in Government under clause (a) of section 156 of the Ordinance.
8. In view of what has been discussed above, hereinbefore, the order dated 25-9-1988 passed by respondent No,3 cannot be sustained having been passed by the said respondent who was not vested with any authority to pass the said order. After having held that the said order is not sustainable in law, therefore, any resolution passed by respondent No,1 to implement the said order and consequential order for demoting the petitioner cannot stand and have to fail as being a superstructure raised on a void order.
9. Learned counsel for the respondents faced with this difficulty, attempted to overcome it by arguing that this writ petition suffers from laches as it has been filed after a lapse of time of one year. In my opinion this argument if considered in the context of the facts and circumstances of this case is a plainly unsound. The petitioner challenged the said order by filing the suit which fact has been pointed out by learned counsel for the respondents himself which in my view was withdrawn bona fide because the petitioner justifiably thought that order dated 28-8-1988 passed by Assistant Director, Lahore on the representation of Muhammad Aslam upholding the act of respondent No,1 for inviting applications to make appointments against the posts through direct recruitment redressed his grievance and he withdrew the suit saying that his grievance stood redressed. This belief was not unjustified because Assistant Director is an officer admittedly higher in rank to that of Deputy Commissioner and an impression if entertained by the petitioner that in the presence of his order, order of respondent No,3 dated 25-9-1988 could not retain its existence was well-founded. Since the petitioner was persuaded to withdraw the said suit thinking that his grievance had been redressed, therefore, the question of laches does not arise in this case. Even otherwise, the question of laches relates to discretion of the Court and not to the jurisdiction. In this case, I am not inclined in my discretion to decline to interfere in the matter which would result in perpetuating illegality committed in the matter by respondent No,3 and also by respondent No,1.
10. Learned counsel for the respondents then argued that the petitioner is guilty of suppression of material facts, therefore, he was not entitled to discretionary relief. According to learned counsel the factum of filing and withdrawal of suit by the petitioner was not mentioned in the writ petition which was deliberately concealed. I am afraid, this argument has also no substance inasmuch as it has already been held that the petitioner was justified in withdrawing the suit as he was persuaded to do so by an act of Assistant Director, Local Government though the order passed by him was also without jurisdiction as discussed above. I would accept the explanation of learned counsel for the petitioner that since in these circumstances, the filing of suit and its withdrawal was not relevant for the disposal of this petition, therefore, it was with bona fide intention to avoid burdening the writ petitioner with unnecessary facts.
11. This brings me to the question whether suspension of the petitioner from service through order dated 3-10-1989 is sustainable. It was admitted by Mushtaq Ahmad, Chungi Inspector Town Committee, Shahkot who appeared with the record that after this order of suspension no show- cause notice has yet been issued to the petitioner alongwith statements of allegations to call upon him to submit his explanation, and stated that an Inquiry Officer has been appointed who shall issue him show-cause notice etc. And complete other formalities envisaged by Efficiency and Discipline Rules 1981.
12. I have examined the said rules which provide that if the authority decides to proceed against a servant of Local Council he may be suspended from service and shall be issued a show-cause notice by the authorised officer alongwith statement of allegations and call upon him to submit his explanation. If after examining the explanation it was not found satisfactory then further proceedings under the said rules could be taken. In this case, since Inquiry Officer according to Mustaq Ahmad Chungi Inspector, Town Committee, Shahkot, has been appointed, therefore, it is clear that the authorised officer decided to hold regular inquiry through Inquiry Officer. The appointment of Inquiry Officer before due compliance of the rule regarding issuance of show- cause notice alongwith supply of statement of allegations and calling upon the petitioner to submit his explanation is not permissible under the rules. The manner in which the petitioner has been proceeded against in disciplinary matter is not warranted by the said rules which act is not sustainable. Mushtaq Ahmad Chungi Inspector Town Committee, Shahkot, complained that the petitioner absented from office therefore it was not possible to issue him show-cause notice etc. If that was so, the respondent No,1 should have taken action against him for absence from duty without permission. No such order was passed by respondent No,1 on the record therefore this plea appears to be an afterthought.
13. For the foregoing reasons, this writ petition succeeds. It is accepted. The order passed by respondent No,3 on 25-9-1988, resolution passed by respondent No,1 on 26-8-1989 in pursuance of this order and order dated 28-9-1989 issued by respondent No,1 in compliance with the said resolution for demoting the petitioner from post of Octroi Inspector to the post of Octroi Clerk are hereby declared to have been passed and issued without lawful authority and of no legal effect.
The same are hereby quashed. In the result, the petitioner shall continue to hold the post of Octroi Inspector to which post he was appointed through resolution passed by respondent No,1 on 8-12- 1986 till such time the said resolution and the proceedings taking in the meeting of the House of Town Committee in which the said resolution was passed, appointing the petitioner against the said post are quashed, by competent authority in accordance with law.
14. The order dated 3-10-1989 passed by respondent No,1 for suspension of the petitioner from service for the foregoing reasons is also hereby declared to have been passed without lawful authority alongwith further disciplinary proceedings such like appointment of inquiry officer for the reasons discussed above which is also quashed. It may be observed that respondent No,1 if it is so minded and there is a case for proceedings against the petitioner for disciplinary action may proceed against him in accordance with the rules. The parties are left to bear their own costs.