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Writ Petition No. 1498/S of 1975, decided on 6th June, 1987.

(a) Punjab Local Government Ordinance (VI of 1979)‑

‑‑S. 44‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Constitution of Pakistan (1973), Art. 199‑‑Section 44 of Ordinance, 1979 not retrospective in operation‑‑Remedy created by way of appeal to Punjab Services Tribunal not available in 1975 to a person governed by West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963‑‑Order passed and writ petition filed against in 1975 by such person not affected by subsequent change in law.

(b) West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963‑‑

‑‑‑8. 9(c)‑‑Criterion for promotion is seniority‑cum‑fitness‑‑Nothing to show that petitioner was not found "fit" for promotion‑‑Promotion of junior in preference to petitioner, held, illegal in circumstance.

Raza Hussain Shamsi with Kazim Raza Shamsi for Petitioner. Farooq Bedar, Asstt.A.‑G. for Respondents Nos. 1 and 2. Nemo for Respondents Nos. 3 to 6.

Date of hearing: 6th June, 1987.

Petitioner is agitating grievance against wrong fixation of his seniority and deprivation of consequential benefits.

2. Petitioner was initially appointed as Senior English Teacher in Municipal Committee High School Pattoki on 24‑9‑1955, and was promoted as Headmaster on ad hoc basis on 15‑8‑1969, to which Government approval was bestowed on 19‑2‑1971 vide letter No.LCS‑(Ed)‑Gen (100)/70 (Annexure 'D'). Petitioner's service is governed by the West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963 (hereinafter referred to as the Rules) whereunder cadre of Headmasters of Municipal Committees, Schools was provincialised; and the Secretary, Local Government and Rural Development Department was to maintain seniority list on provincial basis. Accordingly a seniority list (Annexure 'E') was prepared, wherein Petitioner was placed at No.9, thus is senior to respondents 3 to 6. Subsequently with a view to filling up 12 posts of Headmasters on regular basis (against vacancies to be filled up by promotion) various persons were interviewed including the petitioner by the Local Government Board, on 27‑6‑1975, pursuance to which respondent No. 1, vide order dated 28‑6‑1975 (Annexure 'G'), appointed 12 persons as Headmasters, on regular basis, including respondents No.3 to 6 despite being junior to the petitioner (mentioned in the seniority list at No.10 to 12). The petitioner feeling aggrieved made a representation to the Secretary Local Government and Rural Development Department (respondent No. 1) on 5‑7‑1975 (Annexure 'K'). This was accepted vide order dated 5‑8‑1975 (Annexure 'L') and the petitioner was placed at No.l of the waiting list. Dissatisfied with this treament petitioner instituted the present writ petition, calling in question vires of both the orders, viz. order dated 28‑6‑1975 and 5‑8‑1975.

3. The learned counsel for the petitioner has assailed the impugned orders being, malafide, biased, has been passed in colourable exercise of jurisdiction, is discriminatory in its nature and contrary to the Rules, thus merits to be set aside. On the other hand the learned Assistant Advocate‑General, has raised objection as to maintainability of the petition, on the ground that the petitioner is a civil servant for the purposes of Punjab Services Tribunal, thus his remedy is by way of an appeal, consequently this petition is not maintainable and merits to be dismissed.

4. Before adverting to the merits of the case, I intend to first deal . with the jurisdictional objection raised by the learned Assistant Advocate‑General. The admitted position is that members of the Local Council Service, have been classified as civil servants for the purposes of the Punjab Service Tribunals Act, 1974, by virture of Section 44 of the Punjab Local Government Ordinance, 1979, which was introduced in the year 1978, whereas the impugned orders were passed in the A year 1975, and the writ petition was also instituted in the same year. A perusal of the text of Section 44 of the Punjab Local Government Ordinance, 1979, does not manifest legislature's intent to give it retrospective effect. Thus, the remedy created thereunder by way of appeal was not available to the petitioner at that point of time. As a result whereof the preliminary objection raised by the learned Assistant Advocate‑General has no force and the same is repelled.

5. Now I proceed with the petitioner's contentions. I asked the learned counsel for the petitioner to demonstrate mala fide disposition of the respondents with reference to documents, as perceived in Saeed Ahmad's case P L D 1974 SC 151, to which he frankly conceded his inability. Likewise he did not press the other contentions and confined his submissions to two points viz. the impugned order is contrary to Rule 9 (c) of the rules, and is discriminatory.

6. To appreciate the first contention of the learned counsel for the petitioner, Rule 9 (c) needs examination, which is reproduced as under:‑

"9. Methods of recruitment.‑‑ (1) Vacancies in the different classes and grades o the Service shall be filled by:

(c) by promotion on the basis of seniority subject to fitness from among members of the Service in the next below Grade or Class".

A perusal of the above Rule, reveals that the criterian postulated therein for promotion is seniority‑cum‑fitness.

In the instant case, petitioner's seniority uncontrovertably stands established, at serial No.9 of the seniority list prepared by the Government on provincialized basis. The second requisite is "fitness" on which count respondents have not been able to show that petitioner was not found to be "fit" for promotion regularisation. To the contrary the very fact that within a span of nearly month and a half, vide Notification dated 5‑8‑1975 approval, was accorded and he was placed at serial No.l of the waiting list, clearly establishes that nothing was available on the record with the Government justifying the impugned action. Therefore it is amply clear that the petitioner had fulfilled the requisite qualification of fitness as well.

7. The learned counsel for the petitioner demonstrated the discriminatory treatment having been meted out to the petitioner, firstly by showing that respondent Nos. 3 to 6 have been promoted who were juniors to the petitioner; secondly (by referring to Annexure 'Q') it is submitted that the Government has granted ex post facto promotion to one Ghulam Yasin, Headmaster M.C. High School Nankana Sahib by making it retrospectively operative by 10 years, whereas petitioner despite approval was placed on waiting list for future.

8. I asked the learned Assistant Advocate‑General to justify the discriminately treatment to which the petitioner has been subjected to. After consulting the departmental representative, who was assisting him with the official record, he could not lay his hands on any material to justify the position. I am persuaded to observe that if respondent No.l was minded to act strictly in accordance with law, then, after according approval for promoting petitioner on regular basis on 5‑8‑1975, instead of playing him on waiting list, the only appropriate order should have been to grant ex post facto sanction by making it retrospectively operative with effect from 28‑6‑1975.

9. In this view of the matter I hold that the action of respondent No.l in superseding the petitioner vide order dated 28‑6‑1975 and promoting persons junior to him in service, suffers from legal infirmity B hence is set aside. Further more action of respondent No.l in placing the petitioner's name on the waiting list once having accorded approval is equally illegal. The petitioner is entitled to his due seniority and the consequential benefits.

10. The petition accordingly succeeds. However, there shall be no orders as to costs.

K.B.A./A‑120/L Petition accepted‑

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