' According to the petitioner Headmasters of Schools Nos. 4 and 13 respectively requested the Administrator, Municipal Committee, Gujranwala, respondent No, 2, to provide Certificated Teachers (C. T.) for their schools in order to teach science subject. The petitioner was recommended for appointment as such in one of the schools by the Education Clerk of the Municipal Committee on 20th of March, 1975. This recommendation was endorsed by another Officer on 30th of April, 1975. The Administrator, Municipal Committee ultimately accepted the recommendation for the appointment of the petitioner as science teacher who was issued the appointment letter under the signatures of the Chief Officer of the Municipal Committee on 2-5- 1975. The order passed by respondent No, 2 on 30-4-1975 appointing the petitioner as science teacher was challenged in appeal which was accepted by respondent No, 3, Adeitional Commissioner (Revenue), Lahore Division who after setting aside the impugned order remanded the cast to respondent No, 2 for fresh decision in accordance with the gcidelines given in the order.
The petitioner has assailed the validity of the order mainly on the ground that the appeal being incompetent and respondent No, 3 having no jurisdiction whatsoever to decide the matter, the impugned order being illegal and without jurisdiction is liable to be sot aside.
2. The provision as contained in section 29 of the Municipal Administration Ordinance, 1960, under which law the whole matter was dealt with provides that Government may from time to time specify the posts in the Municipal Committees which shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VIII of Part II of the Order, anal the other provisions of that Chapter shall mutatis mutandis apply in relation to the servants of Municipal Committees as they apply in relation to the servants of Local Councils as if the said provisions had been enacted in this Ordinance. The Rules called West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963, were framed by the Governor of West Pakistan in exercise of his powers conferred upon him by Article 47 or the Basic Democracies Order, 1959 read with section 29 of the Municipal Administration Ordinance, 1960. Rule 8 thereof provides that penalty such as censure, withholding of increment, recovery from employees pay of the whole or part of any pecuniary loss, reduction to a lower post, compulsory retirement from service and dismissal from service may be imposed under the rules upon a Municipal servant. The penalty such as censure, withholding of increment and recovery of amount from one's salary would be minor while the remaining would be major penalties. The provisions as contained in Chapter III of the Rules, relate to inquiries for inefficiency, misconduct, or corruption while Chapter VI deals with appeals. Rule 40 under Chapter VI provides that a Municipal servant on whom a penalty has been imposed under rule 36, 37 or 38 may, within ninety days of the order in question, appeal to the appellate authority specified in rule 42, i,e,, the chairman of the Municipal Committee, where the order has been passed by an Officer of the Municipal Committee, the Controlling authority where the order has been passed by the Municipal Committee, its Chairman or Vice-Chairman and the Government where the order has been passed by the controlling authority. Rule 46 provides that appeal may be withheld by the appellate authority if it is an appeal in a case in which no appeal lies under these rules.
3. Section 119 of the Municipal Administration Ordinance, 1960, provides that any person aggrieved by an order passed by a Municipal Committee or its Chairman or Vice-Chairman In pursuance of this Ordinance may appeal to such authority, in such manner and within such period as may be prescribed. The rules called as West Pakistan Municipal Committees (Appeals) Rules, 19(0 were framed by the Governor of West Pakistan in exercise of his powers conferred upon him by section 119 of the Municipal Administration Ordinance. Rule 3 of the Rules provides that they shall apply to all appeals preferred against the orders passed under the Municipal Administration Ordinance, 1960, except appeals by servants of Municipal Committee in matters relating to their service.
4. It has been argued on behalf of the respondent while relying upon the notification dated 20th of July, 1962, issued by the Governor of West Pakistan appointing the Additional Commissioners of Rawalpindi, Lahore, Sargodha ard Multan Divisions to exercise the powers of Commissioner under the Ordinance in respect of hearing of service appeals of Municipal Employees within their areas under section 3 (1) (8) of the Municipal Administration Ordinance, 1960, that the Additional Commissioner having been conferred powers by the notification was competent to dispose of the appeal preferred by respondent No,
1. The provision as contained in section 3 (1) (8) of the Ordinance, has defined the Commissioner such as the Chief Officer in Charge of the Revenue Administration of the Division concerned. Subsection (1) (8) of section 3 defines the controlling authority in the case of such Municipal Committees or class of Municipal Committees as the Government may from time to time, by notification in the official Gazette, specify in this behalf, the Government, and in all other cases, the Commissioner. As mentioned above, rule 42 of 1963 Rules framed under section 29 of the Municipal Administration Ordinance, i960 provides that appeal against the order of Municipal Committee would be preferred before the Controlling Authority which has been defined by section 3 as Commissioner in the present case. Since the Commissioner also includes the Additional Commissioner so far as the decision of service appeals preferred by the Municipal employees are concerned, therefore, the notification dated 2eth of July, 1902 would be relevant to confer jurisdiction upon respondent N. 3, Additional Commissioner, Lahore Division. In my humble view the notification should have been issued under section 3 (1) (10) for the purpose of enabling the Additional Commissioners to act as controlling authority in addition to the Commissioners and not under section 3 (1) (8). Since the purpose of legislation otherwise is clear to confer such jurisdiction also upon the Additional Commissioners therefore, it is held that under the said notification respondent No, 3 was competent to hear service appeals preferred by Municipal servants.
5. However, this does not end the controversy. One thing becomes clear from the discussion made above that section 119 of the Municipal Administration Ordinance, 1960 and rules framed thereunder ; West Pakistan Municipal Committees (Appeals) Rules, 1960, are not applioabte in the case of appeals preferred by servants of Municipal Committees in matters relating to their service.
The notification dated 18-1-1963 issued by the Governor of West Pakistan under section 119 of the Ordinance amending 1960 Rules by adding rule 6 thereto with regard to transfer of appeals applies only to appeals preferred against the orders passed under the Municipal Administration Ordinance except the appeals by Municipal servants relating to their service matters. In the circumstances, therefore, it cannot be said as contended by the learned counsel for respondent No, 1, that the appeal of his client was filed under section 119 of the Ordinance before respondent No,
3. Since the appeal related to service matter, therefore, it could be filed only under West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963 framed under section 29 of the Ordinance.
6. This now brings us to the point whether the appeal itself was competent and respondent No, 3 otherwise had jurisdiction to dispose of the same. As discussed above the appeal by a Municipal servant is competent only in case penalty has been imposed upon him under rule 36, 37 or 38 of 1963 Rules. In the present case no such penalty having been imposed at all, appeal was not competent and was liable to be withheld as such as provided by rule 46. According to the rules as referred to above, only such appeal can be heard by Commissioner or Additional Commissioner as the case may be, where any of the penalties as provided by rule 8 read with rules 36 to 38 has been imposed upon a Municipal servant otherwise the appeal being not competent the controlling authority would have no jurisdiction to proceed with the same.
7. It has been argued by the learned counsel for the respondent No, I while relying upon A. George v.
Pakistan International Airlines Corporation (1), R. T. H. Janjua v. National Shipping Corporation (2) and Muhammad A. Khan v. State Bank of Pakistan, Karachi (3) that since the matter with regard to master and servant is involved in the present case therefore, the writ petition being not maintainable is liable to be dismissed as such. He has further argued that even if it is accepted for arguments sake that respondent No, 3 had no jurisdiction to proceed with the matter, since his order is based upon justice and equity therefore, it should not be set aside and the petition should not be accepted in aid of injustice. It is contended that since the petitioner was appointed without following the formalities as precribed by rule 6 of West Pakistan Municipal Committees (Servants)
Rules, 1969 as well as the instructions issued by the Education Department, therefore, the Additional Commissioner has rightly remanded the case directing the Municipal Committee to notify the post to all the persons concerned and then select any one of them on merits.
8. So far as the principle of master and servant is concerned the same is not involved in the present case. The petitioner has attacked the impugned order passed by respondent No, 3 on the basis of jurisdiction as well as the appeal itself being incompetent decided by him. He has not prayed for re-instatement or any such direction to respondent No,
3. He only seeks declaration about the decision of respondent No, 3 as to whether he has jurisdiction to decide such matter. It is not denied that respondent No, 3 is a person performing functions within the territorial jurisdiction of the Court in connection with the affairs of the province. That being so as held in
(1) PLD 1971 Lah. 748 (2) PLD 1974 SC 146
(3) PLD 1976 Kar. 778 ' Salahuddin and 3 others v. Taf Muhammad Khanzada (1) High Court is competent to issue writ in nature of quo warranto in such cases where declaration is sought with regard to the authority of such person. However, mandamus cannot be granted to restore or re-instate any party to or post.
Similar view has been taken in Dr. A. N. M. Mahmood v. The Syndicate of the University of Dacca and others (2) holding that an act done without lawful authority can be held to be as such under Article 98 of the old Constitution.
9. The question is that the impugned order being otherwise based upon justice and equity pales into insignificance on the ground that the same has been passed by a person who had no authority to proceed with the matter. If the appeal had been competent and respondent No, 3 as such had jurisdiction to decide the same, had committed otherwise some illegality in the procedure then his order may not have been upset and petition may not have been accepted in aid of injustice. That position not obtaining in the present case the contention raised by the learned counsel has no substance.
10. It is interesting to notice that the same officer, respondent No, 3 while working as Additional Commissioner, Lahore Division, rejected the appeal of Sh. Muhammad Sharif filed against the Administrator, Municipal Committee, Gujranwala on the ground that since no penalty had been imposed upon the appellant as provided by rule 8 of 1963 Rules, therefore, the appeal being not competent he had no jurisdiction to decide the same.
11. For the aforesaid reasons the petition is accepted without any order as to costs and the impugned order is set aside being without jurisdiction and of no legal effect.
(I) PLD 1975 SC 244 (2) PLD 1970 Dacca 85