' The petitioners are employees of respondent No,3. According to the petitioners the Administrator, Market Committee, Lahore vide memo. Dated 2-4-1998 (Annexure I) fixed the Travelling Allowance payable to the staff of the Market Committee. The grievance being made out in this writ petition is that respondents Nos.2 and 4 pursuant to directive issued by respondent No,1 are insisting that it is a prerogative of the Provincial Government to control the matter of Travelling Allowance and that since under the law the Rules applicable in the matter are those framed by the Provincial Government, the Administrators cannot fix the Travelling Allowance in the manner done vide memo. (Annexure-I).
2. Mr. A. Karim Malik. Learned counsel for the petitioners argues that the said act of the said respondents is illegal and void inasmuch as a reading of the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978, the Agricultural Produce Markets (General) Rules. 1979, alongwith Punjab Travelling Allowance Rules notified vide Notification dated 10-7-1976 would show that only the Market Committees and in their absence the duly appointed Administrators are empowered to deal with the matter of Travelling Allowance of the employees of the said Market Committees. Mr. Fauzi Zafar, A.A.-G., on the other hand, argues that since the Rules framed by the Governor of Punjab are applicable, it will be the Provincial Government who will be having the authority to prescribe the Travelling Allowance for the said employees. Also insists that the petitions involving terms and conditions of service of the petitioner employees would be barred under Article 212(3) of the Constitution.
3. I have examined the several documents placed on the file of this writ petition as also the relevant provisions of the said Rules, with the assistance of the learned counsel for the parties. It appears that several Market Committees through their Administrators had been urging that the field staff of these Market Committees travel extensively, a note of appreciation was also put in for the said staff as the hard work of the staff resulted in increase of the incomes of the Market Committee manifold.
Vide letter (Annexure-A) issued by the Director of Agriculture (Economics and Marketing), Punjab an objection raised by the Local Fund Audit, Lahore Division was sought to be answered with reference to the provisions of the said Ordinance that the budget is sanctioned for each Market Committee by the said Director and thereafter expenditure is regulated in accordance therewith and that the Market Committees Fund can be expended, inter alia, for payment of that said Travelling Allowance. Learned counsel for the petitioners particularly draws my mention to letter (Annexure-B) addressed by the Provincial Government to the Administrator Market Committee, Multan clarifying that the said Administrator is competent Authority to grant fixed T.A. To the employees of the Market Committees. Annexure-C is a letter addressed to the Administrator Market Committee, Chak Jhumra by the Regional Director, Local Fund Audit, Sargodha to similar effect. Annexure-D is an order issued by the Director of Agriculture (E&M), Punjab fixing the T.A.
Payable to the several categories of employees each month. This was amended vide order (Annexure-E) of the said Director issued on 1-9-1997. It was at this juncture that the Provincial Government raised objection and vide letter (Annexure-H) the Director proceeded to withdraw the said order dated 1-9-1997. However, the Administrators of various Market Committees proceeded to fix the T.A. In accordance with the order dated 1-9-1997. Respondent No,3 also adopted the same vide memo. Dated 2-4-1998 (Annexure-I) addressed to the Director of Agriculture. In this memo.
The Administrator has also stated the reasons as to why it is necessary to grant a fixed T.A. To the staff of the Market Committees. He has explained that the area of the Market Committee is spread over 16 Police, Stations starting from Shandra to Barki no conveyance is provided to the staff. He has also noted that the income of the Market Committee has increased manifold.
4. Now in the comments filed by respondent No,1 (Provincial Government) the said facts have not been denied. However, it has been insisted that only the Government can sanction the permanent T . A .
5. I have examined the relevant provisions of the said Ordinance and the Rules in the said state of facts. Under section 16 of the said Ordinance, a Market Committee, subject to Rules to be made by the Provincial Government in this behalf, may employee such persons as may be necessary for the management of the Market and also in the manner prescribed grant to its employees, inter alia, allowances. Section 20 provided for establishment of a Market Committee fund wherein all money received by a Market Committee are to be deposited and all expenditure to be incurred by a Market Committee is to be defrayed out of the said fund. Section 21 lays down the purposes for which the sail fund is to be expended. Clause (xiii) of section 21 provides for payment of T.As. To the members and employees of the Market Committees. Section 35 authorises the Provincial Government to make Rules consistant with the Ordinance for carrying out all or any of its purposes section 35(2)(xxvi)(e) pertains to matter relating to inter alia, T.As.
6. Rule 25 of the said Rules of 1979 framed under the said section 35 of the Ordinance by the Governor of Punjab, prescribes the manner in which the only budget of a Market Committee is to be prepared and adopted. Rule 70 provides for the conditions for the service of the employees. Rule 70(6) lays down that in respect of service conditions including disciplinary matters and other matters enciliary thereto, the employees of the Market Committees shall be governed mutatis mutandi by the Rules applicable from time to time, to the employees of the Punjab Government.
Incidentally it is this rule 70(6) which is being pressed into service by respondent No,1 in the matter of resisting this writ petition. Rule 73 lays down the formula for delegation of powers in the matter inter alia controlling the T.As. Now Schedule C to the said Rules provides that the Controlling Officer for T.A. In respect of all officers from N.P.S.1 to N.P.S.17 shall be the Chairman of the Market Committee.
7. Having thus examined the relevant provisions of law I find that the Market Committees are to be run from the moneys received in the Market Committee fund under section 20. This fund can be lawfully utilised for payment of T.As. To the employees of the Market Committees. The employees are to be recruited and are to be granted, inter alia, allowances in the manner prescribed but by the Market Committees. By virtue of section 35(2)(xxvi)(e) the Government is to prescribe the manner of payment of the T.A. Under rule 70(6) the Rules applicable to employees of Punjab Government are to employ mutatis mutandis to the employees of the Market Committee. By virtue of rule 73 the Controlling Officer in the matter of T.A. Is the Chairman, Market Committee. I have also examined the Punjab Travelling Allowance Rule, 1976. Now Rule 2.5 of the said Rules provides for two kinds of T.As. Which can be drawn by civil servants for journeys or tours. These are:
(a) Permanent. T.A. And
(h) Milage and Daily Allowance.
' Rule 2.6 lays down that a permanent monthly T.A. May be granted by a competent Authority to any civil servant whose duty requires him to travel extensively. It is further explained that such an allowance is granted in lieu of all other forms of T.As. For journeys then the civil servants sphere of duties and is drawn all the year round, where the civil servant is absent from his Headquarter or not. Now the competent Authority has been denying in rule 1.5(d) to include any authority to which such powers may have been delegated. Now if we read the said provision with rule 73 of the said Rules of 1979 and all other provisions referred to by me above it stands established that even under the said Punjab Travelling Allowance Rules, 1976, permanent T.A. Can be granted to an employee by the competent Authority who is to be the judge of the circumstances in which the said. T.A. Is payable in accordance with the said Rules. Now examining the memo. Dated 2-4-1998 (Annexure- I) of the Administrator, Market Committee, Lahore in the light of all the said provisions one finds that the competent Authority, for reasons stated in the said order has found that the Market Committee is spread over a large area comprising several Revenue estates and the staff has not been provided with conveyance to perform the field duties extending over the said large area. The said permanent T.A. Has been fixed. To my mind, the said order of the respondent Administrator is within the four corners of the said law and the Rules and it is not even case of respondent No,1 that the powers had not been validly so delegated to the said Administrator in the matter of control of the T.A. Respondent No,1 thus has no lawful authority to withdraw the said orders in the absence of a case being made out that the said T.A. Rules framed thereunder had been violated by respondent No,3.
8. So far as the said second contention of learned A.A.-G. As to the competency of the writ petition is concerned, I do not find much force in the same. The petitioners are not employees of the Provincial Government, rather are employees of respondent No,3, Market Committee and as such would not be falling within the definition of civil servants as contained in the Punjab Service Tribunals Act, 1974. Even otherwise, the matter stands resolved in the judgment in the case of Qazi Akhtar Ali, Secretary, Market Committee Bhalural, District Sargodha v. Director of Agriculture Punjab Agriculture House, Lahore 2000 PLC (C.S.) 784. The bar contained in Article 212(3) of the Constitution would, therefore, not be attracted.
9. For all that has been discussed above this writ petition is allowed and the impugned letters dated 15-10-1997 (Annexure-F) and 9-8-1998 (Annexure-J) are declared to be without lawful authority and of no legal effect. The result would be that the permanent T.A. Will be payable to the petitioners employees in terms of memo. Annexure I dated 2-4-1998 of the Administrator, Market Committee, Lahore. No orders as to costs.