1. Petitioner through this Constitutional petition has challenged the Order dated 14-7-1991 passed by the Secretary, Local Government and Rural Development Department, setting aside the order of the Deputy Commissioner dated 12-11-1990. Since the case has been heard at some length such with the concurrence of the parties it is disposed of as a Pacca matter.
2. Facts to brief for its disposal are that the petitioner was appointed as an Octroi Clerk on the 28th of June, 1978 and resumed his duty/charge on the 28th of June; 1978 while the respondent No. 3 Taj Muhammad was appointed on the 27th of June, 1978. However, he resumed/joined his posting on 1st of .9uly, 1978. Subsequently, a seniority list was circulated on 15-8-1989 wherein petitioner was shown senior to respondent No. 3. On 17-9-1989 petitioner as well as respondent No. 3 were given selection grade. It is the case of the petitioner that a new post of Head Muharrir was created through Resolution No. 381 on 28-5-1990 and the Selection Committee vide its Resolution No. 23 appointed him to this newly-created, post in his own pay and scale on 30th of May, 1990. This selection was approved by the whole house of the Town committee in its general meeting through Resolution No. 401 passed on the same day. Subsequent thereto the Chairman, Town Committee, through his order, dated 31st of May, 1990 issued an appointment order. Aggrieved with his appointment, respondent No. 3 filed as appeal, which was dismissed by the Deputy Commissioner Khushab on 12-11-1990 as being not maintainable. The respondent No. 3 filed a revision petition which was accepted by the respondent No. 4, Secretary, Local Government and Rural Development Department, Lahore, through impugned order dated 14-7-1991. Hence, this Constitutional petition.
3. I have heard the learned counsel for the respective parties. Since I am disposing of this petition only on the question of maintainability, as such, I do not want to dilate upon the other issue argued by the learned counsel appearing for the respective parties. Section 166 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the "Ordinance'") provides that: -- "Any person aggrieved by any order passed by a local council or its Chairman (or its Vice- Chairman or Officer) in pursuance of the Ordinance or the rules or bye-laws, may appeal to such authority, in such manner and within such period as may be prescribed."
4. The prescribed rules for filing of appeals are called Punjab Local Councils (Appeal) Rules, 1980 framed under sections 166 and 167 of the Ordinance. Rule 1(3) provides as under:-- "They shall apply to all appeals preferred against orders passed under the Punjab Local Government Ordinance, 1979 and the rules or bye-- laws framed thereunder except appeals by servants of Local Councils in matters relating to their service."
5. Its reading makes it very clear that these rules are not applicable to the servants of the Local Councils in matters relating to their service. The reference is also made to Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981. Rule 17 thereof has provided as under:-- "17 A servant of a local council on whom a penalty has been imposed under these rules, may within 30 days of the communication of the order, appeal to the authorities given below:--
(i) (Director, Local Government and Rural Development of the Division) in case of a servant of a Municipal Corporation or a Zila Council;
(ii) (Assistant Director, Local Government and Rural Development of the District) in case of a servant of a Municipal. Committee or Town Committee; and Provided that the appellate authority, m the case of a servant m NPS--18 and above or in the case of a servant to whom a penalty has been imposed by an officer appointed under sub-rule (4-) of Rule 2, shall be Government. In case penalty has been imposed by Government, no appeal shall lie and instead a review petition shall lie to Government: Provided further that if the appellate authority is satisfied that there is sufficient ground for extending the time it may entertain the appeal at any time."
6. The reading of it shows that appeal under the aforesaid rule has only been provided against disciplinary actions taken against the servants of the local councils. The Punjab Municipal Committees Service Rules, 1969 have laid down the method of recruitment and certain other terms and conditions of its employees. However, no appeal was even provided in these rules to the local servants. The Governor of Punjab in exercise of his power conferred on him under section 167 of Punjab Local Government Ordinance. 1979 has added rule 13-A to the Punjab Municipal Committees Service Rules, 1969 on 25th of July, 1990 which provides as under: -- "Rule 13-A. Right of appeal---(i) A member of the service aggrieved by an order passed against him under these rules, shall have a right to file an appeal to the Commissioner concerned in case of Corporation and the Deputy Commissioner concerned in case of Municipal Committee/Town Committee within sixty days against the order passed by the Corporation/Municipal Committee/Town Committee its Mayor/Chairman or any other officer of the Corporation/Municipal Committee/Town Committee.
(ii) No second appeal shall lie but a revision petition can be made to Government within 30 days from the date of appellate order whereupon Government may pass such orders as deemed fit."
7. The Deputy Commissioner, Khushab was right m his approach to dismiss the appeal as being not competent, as such, the respondent No. 4 committed an illegality in setting aside his order in the exercise of his revisional power which power was made available to him on 25-7-1990 because of the addition of Rule 13-A to the Punjab Municipal Committee Rules, 1969. The impugned action subject-matter of revision petition was taken on 30/31-5-1990 when respondent No. 4 had no revisional power. The Notification issued on 25-7-1990 conferring appellate/revisional power cannot have retrospective effect. It is established law that a notification is to operate from the date of its promulgation unless it is expressly or by necessary intendment made to take effect retrospectively, Reliance in this respect is placed upon Burmah Oil Company Limited v. The Trustees for the Port of Chittagong (PLD 1961 SC -152) and Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another (PLD 1964 SC 494). In this background the exercise of revisional power by respondent No.4 is open to exception. Accordingly the writ petition is accepted and order dated 14-7-1991 passed by Secretary, Local Government and Rural Development Department is declared to have been passed without lawful authority and of no legal effect leaving the parties to bear their own costs.