MUHAMMAD SAIR ALI, J.-- Through this Constitutional petition, petitioner has challenged impugned orders dated 18.3.1991 passed by Mayor, Municipal Corporation, Faisalabad (respondent No. 3), 6.4.1993 passed by Deputy Commissioner, Faisalabad (respondent No. 2) and 27.1.1994 of Secretary, Punjab Local Government and Rural Development Department (respondent No. 1).
By order dated 18.3.1991, petitioner was imposed major penalty of compulsory retirement from service by respondent No. 3. Petitioner find an appeal thereagainst before Director, Local Government and Rural Development Department, Faisalabad Division, Faisalabad under Rule 17 of Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981. This appeal was transferred by the Government to Deputy Commissioner, Faisalabad for decision. On 6.4.1993, Deputy Commissioner, Faisalabad exercising the powers of appellate authority upheld the order of compulsory retirement passed by Mayor Faisalabad and dismissed petitioner's appeal. Petitioner thereupon find a revision petition before the Secretary, Punjab Local Government and Rural Development Department, which was also rejected in limine for being incompetent by respondent No. 1 on 27.1.1994. Hence the present Constitutional petition.
2. Learned counsel for the petitioner, at the very outset of his arguments, contended that under Rule 17 of Punjab Local Councils Servants (Efficiency and Discipline), Rules, 1981, the nominated appellate authority in the case of the petitioner is Director, Local Government and Rural Development Department, Faisalabad Division, Faisalabad, before whom petitioner preferred his appeal. This appeal was, however, illegally transferred by the Government to Deputy Commissioner, Faisalabad who was neither the appellate authority nor could he be nominated as an appellate authority under the Rules of the Government. As such, order dated 6.4.1993 passed by Deputy Commissioner, Faisalabad exercising powers as appellate authority is without jurisdiction and coram non judice. Learned counsel for the respondents and the learned A.A.- G. Contended that the Rules were framed by the Government in exercise of powers conferred under Section 46 read with Section 167 of the Punjab Local Government Ordinance, 1979 and in these Efficiency and Discipline Rules, Director, Local Government was nominated as the appellate authority in the cases like that of the petitioner. As such, the Government was authorized to amend the said Rules by nominating another person as appellate authority passing an administrative order of transfer upon an application or otherwise. And that such transferee authority shall be deemed to be appellate authority in accordance with Rules. And further that the appeal was transferred to the appellate authority on the application of the petitioner, wherefor petitioner is stopped from challenging jurisdiction of the Deputy Commissioner, It is further contended by the learned counsel for the respondents that having submitted to the jurisdiction of the Deputy Commissioner as appellate authority without raising any objection, petitioner cannot be allowed to challenge the same in Constitutional petition, as has been settled by the Hon'ble Supreme Court of Pakistan in the case "Islam Din and 7 others v. Nasir-ud-Din" (1995 SCM R 906), specially when no objection thereto was raised in the revision petition before respondent No. 1 i.e. Secretary.
3. I have attended to the arguments of the learned counsel for the parties and seen the record.
There is no denial that under Rule 17 of the abovesaid Efficiency and Discipline Rules, the appellate authority was Director, Local Government and Rural Development Department and Deputy Commissioner was not the appellate authority, It is also admitted that the Government has no authority to transfer an appeal, under the statute and Rules, to any other forum/officer/authority.
No doubt that the Rules were framed by the Government under the provisions of Section 167 read with Section 46 of the Punjab Local Government Ordinance, yet each and every order passed by the Government administratively or otherwise cannot be given the status of a Rule or that of an amendment in the Rule. Framing and proclamation of Rules or amendment therein by the Government entails a process Which are not the requisites of administrative orders passed by a Secretary of Government. Furthermore, Rules framed are imperatively required to be published in the Gazette through a Notification. As such, orders of the Government transferring petitioner's appeal to Deputy Commissioner do not enjoy the status of a Rule introducing amendment in the existing Rules regarding nomination of an appellate/authority different from the one specified in Rule 17 ibid. To treat each and every order issued by respondent No. 1 as a Rule will not only amount to mockery of law, but will also deprive the law and the Rules framed thereunder from the basic jurisprudential characteristic of certainty, consistency, clarity and continuity. To construe orders of the Government functionaries as Rules or amendment therein will amount to give them a licence to create anarchy and chaos in the society.
8. The contention of the learned counsel for the petitioner qua absence of objection and petitioner's participation in appeal proceedings is also without merit. Consent or participation of the petitioner cannot confer legal status and jurisdiction in a person, who has not been so appointed, nominated or conferred jurisdiction by law and Rules. Mere transfer by Secretary, L.G.
And R.D. Department to Deputy Commissioner, Faisalabad cannot be interpreted to give respondent No. 2 the legal status of an appellate authority. As such, petitioner's participation in appeal proceedings before Deputy Commissioner cannot validate the basic invalidity of absence of authority. Facts and circumstances, on the basis of which judgment in the case of "Islam Din and 7 others v. Nasir-ud-Din" (1995 SCMR 106) was pronounced by the Hon'ble Supreme Court of Pakistan, were distinct and different, In that case, some proceedings were undertaken by learned Civil Judge not vested with requisite pecuniary powers, yet the remaining proceedings and the final order was passed by the learned Judge, who was duly vested with the jurisdiction and powers to entertain and try the relevant suit, In the present case, act of transferring of appeal by the respondent No. 1 to respondent No. 2, appeal's entertainment and the decision by respondent No. 2 were actions totally devoid of competence and jurisdiction, In view thereof, order dated 6.4.1993 passed by Deputy Commissioner, Faisalabad is declared to be without lawful authority and of no legal, effect. Petitioner's appeal shall he deemed to be pending before the competent authority, as specified in the Rules and the appellate/authority shall decide petitioner's appeal afresh in accordance with law, within a period of three months after giving due opportunity of hearing to the petitioner. Since petitioner's revision petition against order dated 6.4.1993 was held by respondent No. 1 to be unmaintainable under Rule 22(3) of Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981, therefore, impugned order dated 27.1.1994 shall have no bearing upon redecision of appeal by the competent appellate authority. After decision of his appeal, as directed above, the petitioner shall be within his rights to have recourse to remedies available to him under law, if so advised. This petition is thus accepted in above terms with no order as to costs.