The petitioner, who is working as Octroi Moharrir in Town Committee, Fatehjang, has filed this petition under Article 199 of the. Constitution. seeking declaration that the appointment of respondent No. 2 as Octroi Inspector in Town Committee, Fatehjang and the orders passed in this behalf on 27-11-1989 and 3-6-1990 are without lawful authority and of no legal effect.
2. The facts discernible from the record and fathered from the arguments addressed at the bar are that during the year 1989, a post of Octroi Inspector in Fatehjang Town Committee in .BPS 6 fell vacant'. On an application filed by Muhammad Iqbal, respondent No. 2 herein, the Minister for Local Government and Rural Development, Government of Punjab, on recommendation of the Minister for Zakat and Ushr ordered that that the respondent No. 2 be appointed against the said post. The application alongwith the order was sent by the Secretary, Government of Punjab, Local Government Department to the Chairman of the Town Committee with the direction that the order of the Minister be implemented. Pursuant thereto, the Chairman passed a formal order on 28-11- 1989 appointing respondent No. 2 as Octroi Inspector.
3. This order of appointment was challenged by the petitioner by filing an appeal which was accepted by the Assistant Director, Local Government District Attock who was of the view that according to Rule 21 (c) of West Pakistan Municipal Committees Octroi Rules, 1964, no person could be appointed as Octroi Inspector unless he has five years experience under the Committee and as respondent No. 2 did not possess that experience his appointment was illegal. It appears that with a view to nullify the decision of the Assistant Director Local Government, respondent No. 2 managed to have an order passed by the Chairman, Punjab Local Government Board/Secretary, Local Government and Rural Development- Department on 3rd June, 1990 whereby in the purported exercise of power conferred by Rule 21 (c) of the West Pakistan Municipal Committees Octroi Rules, 1964, sanction was accorded by the Government for relaxation of the rules for the appointment of respondent No. 2. On having learnt of this order, the petitioner protested before the Chairman as also the Deputy Commissioner, both of them declined to interfere in view, of the relaxation granted by the Government and opined that the order of the Assistant Director lost its efficacy. It was in these circumstances that the petitioner has filed this Constitutional petition. .
4. In the written statement filed by the respondents the fact that the appointment to the post of Octroi Inspector was governed by the West Pakistan Municipal Committees Octroi Rules, -1964, according to which five years experience as employee of the Municipal Committee was required has not been disputed. It has, however, been stated that the Government had lawfully relaxed the rules in view of the fact that the respondent No. 2 was F.A: It has also been stated that the appointment made by the Chairman was confirmed by the House by Resolution No. 328 dated 13- 6-1990.
5. In support of this petition, the learned counsel for the petitioner has raised the following contentions:-- (i)That Minister for Local Government had no jurisdiction to pass-any order appointing the respondent No. 2 as the competent authority under the Rules was the Chairman or the Local Council itself which had acted under the dictated exercise of jurisdiction and, therefore, the appointment of respondent No. 2 was a nullity; (ii)as respondent No. 2 did not possess the requisite qualification as provided by Rule 21 (c) of the Rules, his appointment was bad in law; (iii)there is no power vested in the Government to relax Rule 21 (c) of the Rules and at any rate no reason has been given for the exercise of power vested in the Government to relax the rules laying down the minimum qualification for appointment as Octroi Inspector and in any event the exercise of power is arbitrary, colourable, mala fide and legally infirm as no reason for doing so has been stated.
6. Mr. Bashir Ahmad Ansari and Mr. Muhammad Munir Ahmad Peracha, learned counsel for the respondents have raised a preliminary objection as to the locus standi of the petitioner to file this petition as, according to them he was not an aggrieved person within the meaning of Article 199 of the Constitution. So far as the merits are concerned, learned counsel have relied upon Rules of Business framed by the Governor of Punjab under Article 179 of the Constitution to contend that the Minister for Local Government has power to deal with all matters relating to Local Council services.
It has also been argued that in view of rule 31 of the said Rules 1964, the Government has the power to relax the rules which was validly exercised and cannot be objected to.
7. There is a considerable force in the contention raised by the learned counsel for the petitioner.
Although it is correct that under the Rules of Business of the Government of Punjab, 1973, Local Government and Rural Development Department is authorised to deal with the Local Councils but in view of the Rules of 1964 power to make the appointment vests in the Municipal Committee and not the Minister. Learned counsel for the respondents are unable to cite any law which vests the Minister with the authority to make an appointment in the service of Municipal Committee. Even according to the argument of the learned counsel representing the Town Committee this power vests in the Local Council itself. It appears that the Minister was filly congnizant of this limitation and it was for that reason that instead of passing the order of appointment himself, the Minister directed that respondent No. 2 be appointed as "Octroi Inspector". This order was forwarded by the Secretary Local Government to the Chairman concerned for implementation who, in obedience to that, had appointed the respondent No.2. It is apparent from the bare reading of the order of the Chairman dated 28-11-1989 which itself recites that the appointment of respondent No. 2 was being made on the orders of the Minister for Local Government and Rural Development Punjab dated 18- 11-1989.
8. It is trite law that if a statutory functionary has been invested with central power, it must be exercised by him uninfluenced by any other person after independent application of mind. It is equally well-settled that if the functionary acts under the dictates of others or in compliance of the orders passed by his superior without backing of any law, the exercise of that power being dictated in nature stands vitiated. Reference can be made to Malik Muhammad Nawaz v. Chairman, District Council, Campellpur and others (PLD 1961 Peshawar 152,- Muhammad Tufail v. Province of Punjab and 5 others, .PLD 1978 Lahore 87 and Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others, PLD 1972 Lahore 316. The following statement appearing in Administrative Law by H.W.R. Wade, Sixth Edition, page 368 is instructive and may usefully be referred to:-- "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the Courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them. In this class might be included the case of cinema licensing authority which, by requiring films to be approved by the Birtish Board of film Censors, was held to have surrendered its power of control and also the case of the Police Complaints Board, which acted as if it were bound by a decision of the Director of Public Prosecutions when only required to 'have regard' to it. This doctrine has even been applied to voting by local councillors.
Similarly the Court invalidated a reinstatement order made under wartime labour regulations by a national service officer, who was empowered to direct reinstatement of workers dismissed for misconduct. For the officer was acting under directiorts from the minister, whereas he was a statutory authority in his own right and should have exercised his personal discretion. The minister's directions were merely that there should be reinstatement wherever the appeal board was unanimous. But in fact the minister had no power to lay down any such rule, however reasonable.
Even where there is a right of appeal to the minister, and it may seem sensible to take account of his practice, it has been held that this must not be adopted uncritically; but this was a case where the Act specifically required a local authority to follow certain rules, which did not extend to the departmental practice which they followed wrongly."
9. Faced with this situation, learned counsel for respondents have attempted to argue that the appointment of respondent No. 2 was made not by the Chairman by virtue of order dated 28-11- 1989 but by the Local' Council itself in its meeting held on 13-6-1990 which was independent exercise of jurisdiction by the Local Council. Therefore, the principle relied upon by the learned counsel for the petitioner has no application.
10. 1 am unable, to accept this argument for many reasons; firstly that it runs counter to the written statement filed by respondent No. 2 wherein it stands admitted that his appointment was made by the Chairman which was later on confirmed by the House; secondly that even from the minutes of the meeting held on 13-6-1990, it is apparent that the House did not appoint respondent No. 2 but proceeded to confirm him in service and lastly that the Local Council had not passed any order but confirmed the order of the Chairman and if the former is without jurisdiction and nullity in the eyes of law having been passed under the dictates of Minister the subsequent confirmation would also not clothe it with legality. (See Ahmad Khan v. Member (Consolidation) Board of Revenue, Punjab, Lahore and others (PLD 1990 SC 1070) and Yousuf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104).
11. The second argument of the learned counsel for the petitioner is equally well founded. According to rule 21(c) of the West Pakistan Municipal Committees Octroi Rules, 1964 which apply mutatis mutandis to Town Committees, no person could be appointed as an Octroi Inspector unless he is matriculate and five years experience to his credit under the Municipal Committee. Admittedly respondent No. 2 did not possess the requisite experience. In these circumstances, it was not open either to the Minister even if he had, any power, .or to the Town Committee or its Chairman to appoint respondent No. 2. I am not impressed by the argument of the learned counsel for respondent No. 1. In order to overcome this difficulty, learned counsel for the respondents have argued that the Government in the exercise of power vesting in it has relaxed the rules in the case of appointment of respondent No.2.
12. In reply, it was urged by the learned counsel for the petitioner that the power of relaxation as contained in rule 31 is only available in respect of the matters dealt with in Chapter 10 and not with other matters. I am not persuaded to agree with the learned counsel for the petitioner on this aspect. According to Rule 31, the Government has power to relax any of the provisions of the rule which would include the rules appearing in Chapters other than Chapter IV also and there is nothing in the wording of Rule 31 which has confined its applicability only to the matters appearing in Chapter 9. The only--argument of the learned counsel for the petitioner in respect of this limited application of this rule was that it appears in Chapter IV. It is, however, well-- established principle of interpretation that heading of a chapter or its title cannot be used in order to restrict the meaning of the provision itself. In Bindra's Interpretation of Statutes, 7th Edition, the following statement of law appears at page 55:-- "If the language of a section is clear, headings are not to be taken into consideration. Though there is authority for the proposition that the mere heading of a chapter is to be dealt with as though it were a Preamble, yet it cannot be used to cut down the clear words of the section which are contained in the chapter."
(See also Craies on Statutes Law, 7th Edition at page 209).
13: However, the objections raised by the learned counsel for the petitioner in this behalf are well founded. It is to be seen that the appointment of the respondent No. 2 was made by the Chairman on 28-11-1989 while the order relaxing the rules was passed on 3rd June, 1990. at the time when the appointment was made, there being no relaxation, the rule 21(c) was fully applicable and it was not open either to the Minister or to the Chairman to order appointment of a person who was not qualified to be appointed. The relaxation cannot retroactively validate the earlier orders.
Furthermore, it is to be seen that as the power of relaxation is in the nature of exception to the general rules. It must be exercised by the Government on careful consideration of all the facts after due application of mind and in view of compelling circumstances. It is axiomatic that while relaxing rules, the reason for doing so must be sated. There is nothing in the order' of relaxtion dated 3rd June, 1990 from which it could be gathered what was the reason which prevailed with the Government for directing the relaxtion of rules.
14. It may also be noticed that according to rule 31 it is the Government to relax any provision of the rules with regard to all Municipal Committees or a specific one. Thepower, by very wording of the rule, is available for relaxing the application of rules with reference to all municipal' committees or with regard to a particular Municipal Committee. There is, however, no power vested in the Government to relax the rules in an individual case.
15. I am also of the view that the order of relaxation was clearly mala fide in law and was an attempt to validate the order appointing the respondent No.2 which was totally void and without jurisdiction. The conclusion, which is unescapable in the circumstances is that the relaxation was manoeuvred by respondent No. 2 to set at naught the order passed by the Assistant Director, Local Government and Rural Development on 16-5-1990, pointing out illegality in the appointment of respondent No. 2. Learned counsel for the respondent No. 2 has attempted to argue that the Assistant Director had no jurisdiction to pass the order as no appeal could be filed against the order of appointment of respondent No. 2. Even if that be so, it hardly improves the case of said respondent, for Assistant Director has clearly pointed out the violation of rules which have taken place in appointing respondent No. 2.
16. Be that as it may, there is equally if not more weighty reason as to why this petition should not succeed. Even if it be assumed that respondent No. 2, on account of the relaxation of qualification granted by the Government, was entitled to be appointed yet while filling in the post, the concerned Municipal Committee-was under an obligation to follow the procedure prescribed by West Pakistan Municipal Committees Services Rules, 1969. In the present case, detailed procedure laying down the appointment has clearly been flouted as the Minister directly entertained the application and passed an order that respondent No. 2 be appointed.
17. Learned counsel for the respondents was granted time to produce the record in order to show whether the post in question had even been advertised or applications from other candidates were also invited. Mr. Muhammad Munii Ahmad Peracha, Advocate has frankly conceded that no advertisement appeared in the press though he has stated that ex-Chairman had informed him that this fact was made known to all concerned through other methods. In the absence of any record, I am unable to accept this explanation. Even the tenor of order of Chairman shows that no application was invited nor anyone was asked to compete.
18. So far as the objection as to the locus standi of the petitioner to file this petition is concerned, it is totally without any merit. It is well settled that in order to maintain a petition under Article 199 of the Constitution the petitioner need not establish legal right in strict juristic sense but he can show that he has been deprived of an advantage on account of the failure of respondent to act in accordance with law or can demonstrate that prejudice has been caused to him. He would clearly be a person aggrieved within the meaning of Article 199 of the Constitution. In Mian Fazal Din v.
Lahore Improvement Trust, Lahore and another, PLD 1969 Supreme Court 223, it was observed that: "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
19. Viewed from this angle, it would be seen that the petitioner has clearly a right to maintain the Constitutional petition as it is not denied that he having 5 years experience as Octroi Moharrir, has a right to apply and be considered for appointment as an Octroi Inspector.
For all these reasons, this petition is allowed; appointment of respondent No. 2 as Octroi Inspector and orders in this behalf are -declared to be without lawful authority and of no legal effect.
Respondent No. 1 shall proceed afresh to fill. In the vacancy in accordance with law.