Hakim Muhammad Saif-ur-Rehman who holds certificate of Fazil Tib-o-Jarahat from Unani Board was appointed as Unani Hakim in Unani Dispensary Nahang, Sargodha, vide order dated 23-6-1982 by Zila Council, Sargodha. He was allowed pay in BS-5. The petitioner after few months of his joining the post submitted applications for the grant of pay in BS-15 as the Sly VI grade of pay admissible to qualified Hakims under Notification No. (LG)2(3l )/71, dated 15-4-197) was BS-15. The Zila Council after verifying the qualification of the petitioner and despite favourable opinion of gal adviser, and the Audit Department refused to allow the pay in BS-15.
The petitioner then approached the Secretary, Local Government and Rural Development Department, Government of the Punjab for the grant of pay in BS-15. This representation was forwarded by the Government to Zila Council vide its letter dated 14-3-1989 for deciding the representation in the light of afore noted Government Notification. The Zila Council vide its Resolution No.158, dated 3-6-1989 declined the request and informed the Government accordingly.
It may be noted that Zila Council earlier vide Resolution No. 53, dated 5-7-1984 had already refused to allow pay to the petitioner in BS-15. The Government in the Local Government Department again vide memo. Dated 16-1-1990 directed the respondent Zila Council to entertain the case of the petitioner for the grant of BS-15 as well, as Municipal Corporation, Sargodha had also granted BS-15 to one Hakim Muhammad Yousaf vide its letter dated 24-4-1989. The Government repeated its direction vide its memo, dated 5-3-1991 but the Zila Council failed to implement the direction. The petitioner then approached this Court by filing the present Constitution petition on 23-9-1991.
2. The Zila Council, in its parawise comments submitted to this Court, reiterated its stand that the case for the award of BS-15 was placed before the Zila Council for consideration but due to financial implications his request has been refused twice and that as the resources of Zila Council are limited while its expenditure is increasing day by day, it is impossible for the Zila Council to award BS-15 to the petitioner. It was added that the Notification dated 18-4-1979 prescribing pay scale BS-15 to Hakims was in the field when the petitioner joined the post accepting BS-5 offered by Zila Council and that in case B-5 was not acceptable to him, he should not have joined the post.
3. The case of respondent Zila Council in nutshell is that it is an autonomous body; that the expenditure of Zila Council is increasing and it is not possible for the Council to award petitioner pay in BS-15. The question is whether by claiming autonomy, the Zila Council could refuse to pay according to the scales prescribed by the Government. No doubt, Zila Council is an autonomous body but that autonomy stands regulated by the Punjab Local Government Ordinance, 1979. It is to be noted that the power to prescribe the scales of pay admissible to Local Government employees vests not in the Zila Council but in the Government. This power sc vests in the Government under section 46 of the Punjab Local Government Ordinance, 1979. Section 46, clause (b) provides that the Government may, by rules, prescribe scales or grades of pay in the service of Local Council. In exercise of power so vesting, Notification No. SO.VI(LG)2(31)/73, dated 15-4-1979 was issued which prescribes pay scale BS-15 for qualified Hakims. Again the Government has power under section 157 to issue directions to the Zila Council. Such a direction to allow BS-15 to the petitioner was issued by the Government vide its memo, dated 16-1-1990.
4. The plea that as the expenditure is increasing day by day and income cannot keep pace with the expenditure, it is not possible for Zila Council to award the petitioner BS-15 is not supported by any evidence. Nothing has been placed on record to substantiate that the present financial position of the Zila Council does not permit allowing pay to the petitioner in BS-15. In these circumstances, refusal of the Zila Council cannot be held to be legal, just and fair. Respondent Zila Councils is bound to implement the direction of Government as made in the memo, dated 16-1- 1990 and to allow the petitioner pay at least from 16-1-1990 in BS-15. Mr. Irfan Qadir, learned Addl.
Advocate-General is also of the view that the direction given by the Government in its memo, dated 16-1-1990 is legal and has to be implemented.
5. For the reasons given above, the refusal of the Zila Council, Sargodha to implement the direction contained in memo. No. SO.VI(LG)4-3/89, dated 16-1-1990 is hereby declared to be without lawful authority. The respondent Zila Council is directed to implement the said direction from 16-1-1990 without further delay. The writ petition is allowed in the above terms leaving the parties to bear their own cost.