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Case No. 599/ 1903 of 1982, decided on 31st July, 1983.

‑‑ R. 19 read with Punjab Government Notification No. L. C. S. (Accounts : Miscellaneous) 2;62‑80, dated 18th January, 1981 -Dismissal authority‑Divisional Commissioner competent to dismiss Members of L. C. S. of Divisional cadre in grade I1‑Assistant (L. C. S. Class II Junior i.e. grade 11) appointed by Chairman, Provincial Local Government Board serving temporarily in Sargodha Division‑Not within competence of Divisional Commissioner‑-Dismissal order in respect of such official passed by Commissioner and proceedings leading to such order, held, without valid authority and unlawful‑Service Tribunal accepting appeal against such order setting aside same and remanding case to Provincial Local Govern ment Board being competent authority.

Asmat Ullah for Appellant.

A. G. Humayun, D. A. for Respondent.

The appellant has made this appeal to the Punjab Service Tribunal, Lahore wherein he has impleaded the Secretary to Government of the Punjab, Local Government and Rural Development Department, Lahore and the Commissioner, Sargodha Division, Sargodha as respondents.

2. By virtue of this appeal, the appellant has prayed that the orders of the respondents Nos. 1 and 2, dated 20th November, 1982 and 30th June, 1981, respectively be declared as null, void and of no legal conse quence on the right of the appellant and he be re‑instated in service with all the back benefits of salary, seniority, promotion etc.

3. Brief facts of the case are, that the appellant, Malik Mushtaq Ahmad, was appointed as Junior Clerk in the office of the Provincial Selection Board (L. C. S.), now re‑designated Provincial Local Government Board by the Secretary to Government of West Pakistan, Basic Democracies, Social Welfare and Local Government Department/Chairman Provincial Selection Board (L. C. S.) vide order, dated 24th December, 1965. Later on he was promoted as Senior Clerk in the year 1968, Assistant in a leave vacancy in the year 1970 and Assistant (L. C. S. II (Jr.)) against a regular vacancy vide order, dated 26th April, 1971 of the Provincial Local Government Board. He continued working as Assistant as such in the Provincial Local Government Board till the year 1973 when his services were placed at the disposal of Commissioner, Sargodha Division, Sargodha by Secretary to Government of the Punjab s Local Government and Social Welfare Department vide his order, dated 16th November, 1973 for his further posting, on the repatriation of Mr. M. Iqbal Ahmad, Taxation Officer, Municipal Committee, Sargodha to the post of Assistant in the Provincial Local Government Board. Vide order, dated 27th November, 1973, Commissioner, Sargodha Division, Sargodha posted the appellant as Chief Officer, Municipal Committee, Mianwali against a vacant post 'on purely temporary basis and subject to the condition that he will be repatriated as soon as some Class II Senior Officer is posted to any of the posts of Class II Senior and he is rendered surplus in the Division. Thus appellant continued working in Sargodha Division at various stations. While the appellant was working as Secretary, Town Committee, Kallur Kot, he was charge‑sheeted by the Deputy Commissioner/Authorized Officer, Mtanwali vide his memo. dated 20th December, 1980 the additional Deputy Commissioner (General), Mianwali was appointed as Enquiry Officer. The Enquiry Officer conducted enquiry in this case and submitted his findings to the authorized officer, who in turn submitted his recommen dations to the Commissioner, Sargodba Division, Sargodha. A show cause notice, dated 5th May, 1981 was issued by the Commissioner, Sargodha Division, Sargodha to the appellant. The reply of the show‑cause notice was considered, the appellant was heard in person by the Commis sioner, Sargodha Division, Sargodha. The appellant was dismissed from service by order dated 30th June, 1981 of the Commissioner, Sargodha Division, Sargodha. The appellant made an appeal to the Secretary to Government of the Punjab, L. G. and R. D. Department which was considered and rejected vide order dated 20th November, 1982. Hence this appeal.

4. I have beard the parties. It has been submitted by, the learned counsel for the appellant that the appellant was an employee of Provincial Local Government Board and was appointed by the Secretary to Govern ment of the Punjab Local Government and Rural Development Department/Chairman Provincial Selection Board. His services were placed by his appointing authority i.e. Secretary to Government of the Punjab, L. G. and S. W. Department, in November, 1973 at the disposal of Commis sioner, Sargodha Division, Sargodha, for further posting on repatriation of his another colleague, an Assistant, working in Sargodha Division. The further posting order of the appellant dated 27th November, 1973 of the Commissioner, Sargodha Division, Sargodha clearly shows that the appel lant was posted on purely temporary basis in the Division and was to be repatriated when he was rendered surplus in the Division on the availability of other officers. As the appointing authority of the appellant is Provin cial Local Government Board Secretary L. G. and S. W. Department, hence, the Commissioner was not competent authority in the case of the appellant to proceed against him under the E. & D. Rules, as per rule 19 of 'L. C. and M. C. Services Rules, 1963 under which the Divisional Commissioners were delegated the powers vide notification No. L C S (Accounts; Miscellaneous) 2/62/80, dated 18th January, 1981. This dele gated power to the Commissioner, as authority, was in respect of the members of the Divisional cadres of Class II Junior (Grade II) and Class III Senior (Grade 8) of the L. C. S. The appellant was not a member of Divisional cadre, was an employee of the Provincial Local Government Board, working temporary with the Commissioner, Sargodha Division, Sargodha and hence he could not be proceeded against by the Divisional Commissioner. To elaborate it further, the appellant's counsel made a reference to the proviso of rule 19 of L. C. and M. C. Service Rules. 1963, which clearly provides that no member of the service shall be dis missed or removed from service or reduce in rank by an authority sub ordinate to the authority by which he was appointed. The appellant was appointed by Provincial Local Government Board/the Secretary to Govern ment of the Punjab Local Government, Social Welfare Department hence he could not be dismissed by any authority subordinate to this authority. Concluding his arguments, it was submitted by the learned counsel for the appellant that the dismissal order, dated 30th June, 1981 passed by Commissioner, Sargodha Division, Sargodha is unlawful and void ab inilio. It was prayed by him that the impugned orders be set aside, being void ab initio, having no legal effect at all.

5. Controverting the above arguments of the learned counsel for the appellant, the learned District Attorney assisted by the representative of the Commissioner, Sargodha Division, Sargodha has relied upon the detailed impugned order and parawise comments of the respondent No. 2. It has been submitted by the learned District Attorney that these documents specially the impugned order dated 30th June; 1981 of the respondent No. 2, fully justify the validity of the impugned order passed by him hence, the order of dismissal of the appellant has been passed by the competent authority on merits.

6. I have given my anxious thoughts to the arguments of the parties and have also perused the record of this case very carefully to adjudicate the issue as to which is the competent authority to dismiss the appellant. Vide order, dated 16th November, 1973 of the Secretary to the Government of the Punjab, Local Government and S. W. Department, Mr. Muhammad Iqbal, Taxation Officer, Municipal Committee. Sargodha was repatriated to the post of Assistant in the Provincial Local Government Board and in his place the services of the appellant, Assistant, Provincial Local Government Board were placed at the disposal of Commissioner, Sargodha Division; Sasgodha, for further posting. Commissioner, Sargodha Division, Sargodha, vide order, dated 27th November, 1983 posted the appellant as Chief Officer, Municipal Committee, Mianwali against a vacant post on purely temporary basis and subject to the condition that he will be repatriated as soon as Class II Senior Officer is posted to any of the posts of Class II Senior and he is rendered surplus in the Division. These orders make it clear that the appellant is not a member of the Divisional cadre and he belongs to the Provincial Local Government Board and was temporarily posted in the Sargodha Division under the Commissioner, Sargodha Division, Sargodba, ' Part of para. 4 of the impugned order dated 30th June, 1981 of the Commissioner, Sargodha Division, Sargodha through which the appellant was dismissed, is reproduced below :‑

'I have given my anxious consideration to the contentions raised by the accused official. His contention that the Commissioner is not a competent authority to punish him is without substance. It has been held by the Punjab Service Tribunal, Lahore in case Muhammad Akram v. Secretary Local Government and Rural Development, Punjab (Case No. 107/720 of 1980) that the Commis sioner is competent to punish the accused as an appointing authority of L. C. S. officials from grade 8 to grade II of the West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963 and because under proviso of rule 19 of the said Rules, he is competent to dismiss, remove from service and reduce them in rank. Even otherwise since the power of appointment also include the power to dismiss or remove from service under section 15 of the West Pakistan General Clauses Act, 1966, Commissioner being the appointing authority is also competent to impose punishment. Similar view was expressed by the Punjab Service Tribunal; Lahore in case No. 320/670 of 1980 (Abdur Razzaq Khan v. The Province of the Punjab)."

I have gone through the above two judgments of the Tribunal so referred to by the Commissioner. The reliance on these judgments by the Commissioner, Sargodha Division, Sargodha is based on some misunder standing. The appellants Mr. Muhammad Akram (Sub‑Engineer, Shakargarh) and Mr. Abdul Razzaq (Secretary, Municipal Committee. Garhmaharaja; District Jhang were the members of the Divisional cadre and the concerned Commissioners were the competent authorities in their cases, but in the case of the present appellant, he was not member of the Divisional cadre, he was an appointee and employee of the Provincial Local Government Board working temporarily in the Sorgodha Division. For further elucidation of this matter rule 19 of the L. C. and M. C. Service Rules, 1963 is reproduced below :‑

"19. Delegation.‑Subject to the provisions of the Basic Democracies Order, 1959, the Municipal Administration Ordinance, 1960, and these rules, Government or the appointing authority may delegate any of its powers under these rules to any officer subordinate to it .

Provided that 'no member of the service shall be dismissed or removed from service or reduced in rank by authority subordinate to the authority by which he was appointed."

A reference may also be necessary to notification No. L. C. S. (Acctt. Misc.) 2‑62/80, dated 18th January, 1981 through which, in Committee Service Rules, 1963, the Divisional Commissioners were designated as authority. In this notification, it has been laid down, that the Divisional Commissioners will be the authority in respect of the members of the Divisional cadres of Class II Juniors (Grade II) and Class III Senior (grade 8) of the Local Councils service. This, rule 19, of the L. C. and M. C. Service Rules, 1963 and the notification, mentioned above, do not entitle the Commissioner, Sargodha Division, Sargodha to act as "Authority" to proceed against the appellant. A scrutiny of the record of the appellant, maintained by the Provincial Local Government Board, Punjab, also reveals that a note was put up by Mr. Qamar‑ul Zaman, Private Secretary to the Governor, Punjab on 3rd September; 1980 to the Governor, regarding 'non‑payment of salary to the appellant wherein the Governor on 3rd September, 1980 had ordered as follows :‑

"Another case of maladministration, please let me have a report by 6th September."

On this, report was called from the Commissioner, Sargodha Division, Sargodha. The Commissioner. Sargodha Division, Sargodha vide his U. O. No. L. C. S. (Admn) 13828, dated 4th September, 1980 reported the factual position to Mr. H. M. Akram, Secretary to Government of the Punjab, Local Government Rural Development Department, taking a stand that the appellant was employee of the Provincial Local Government Board, working in Sargodha Division on the specific condition that as soon as he was rendered surplus, would be repatriated to the Provincial Board. As a surplus official the appellant should have been repatriated to the Provincial Local Government Board but efforts were made to accommodate him in Sargodha Division by making special arrangements.

7. The facts of this case as given in para. 6 above, make it clear that the appellant is the appointee of the Provincial Local Government Board, is not a member of Divisional cadre, and the Commissioner, Sargodna Division, Sargodha, is not a competent authority in the case of the appellant and he bad no jurisdiction to proceed against the appellant. Thus all the proceedings conducted by the said Commissioner against the appellant under the Efficiency and Discipline Rules, and the impugned order of his dismissal passed by him is without any valid authority and is unlawful.

8. Keeping in view the above detailed analysis of this case I hold that the Commissioner, Sargodha Division, Sargodha was not a competent authority to dismiss the appellant. Hence the impugned order, dated 23rd June, 1981 through which the appellant has been dismissed by the said Commissioner, having been passed without any authority, is not a valid, lawful order and is declared as void ab initio. The result in nut shell is that both the impugned orders are set aside as being of no legal effect at all and the appellant is directed to be re‑instated in service. The case is remanded to the competent authority i.e. the Provincial Local Government Board, Punjab/ Secretary 'Local Government and Rural Development Department, Punjab/Chairman of the Provincial Local Government Board to proceed afresh, if so desired, against the appellant in accordance with the law.

A. E. Appeal accepted.

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