P L D 1958 (W (PLP)

10. In matters of promotion to any cadre of service in the Corporation, due regard will be paid to seniority subject to competency.

11. Every new incumbent of a post shall be on probation for a period of at least one year. Tae case of a person on proba tion shall be taken up by the Head of the Department concerned and if he himself happens to be the Head of the Department, by himself, one month before the expiry of period of probation and shall be place before the competent authority. The incum bent himself shall be personally responsible to move the case of his confirmation within the prescribed time.

12. Every candidate, except permanent employees of the Corporation shall along with their applications for appointment submit the following:‑ (i) A duly certified copy of the Matriculation or School Leaving Certificate or other certificate from the University show ing the date of birth of the candidate. (ii) A certificate of good character from 2 respectable persons (knowing the candidate and his family) but these must not be his relations. (iii) If he has not been employed elsewhere or has not been rejected in securing such employment, a declaration of the appli cant to that effect. (iv) In case he has been under some other employment, a certificate of his previous employer regarding his honesty and good conduct and the reasons for quitting previous service. Bye‑law 10, it will be observed makes it incumbent on the appoint ing authority to have due regard to seniority subject to competency in matters of promotion. Contentions on behalf of the petitioner are: (1) that it is not a case .of promotion at all but a direct appointment, (2) that there is no question of seniority as between the petitioner and respondent No. 4, they being employees in different departments of the Corporation and (3) that there was no material before the Commissioner for holding that due regard had not been paid to seniority, for the rule does not make it incumbent on the Corporation to appoint the employee who is senior.

6. Before proceeding to consider the question of seniority and promotion it is necessary to state the grades in which the petitioner and respondent No. 4 were already serving and the duties that they were discharging. The petitioner, as already stated, was the Lands Officer, whose grade is 250‑15‑355/15‑

460. At Rs. 355/‑there is an efficiency bar and if that is crossed the employee can go up to Rs.

460. The petitioner was actually drawing Rs. 400 at the time when he applied for this appointment. The petitioner had been appointed Lands Officer only three years ago but in view of his previous qualifications he had been granted an initial salary of Rs.

355. The main duties of a Lands Officer are the collection of rents and fees relating to immovable property of the Corporation. Respondent No. 4, as already stated, was Assistant to the Legal Advisor, his grade being Rs. 300‑20‑400/25‑500 and he was actually drawing Rs. 400 at the time when he applied for the post of Assessor. The duties of a Legal Advisor, as can well be imagined, are that he gives legal advice and also conducts cases for the Corporation. He is an Advocate on the rolls of the High Court.

7. To consider first the question whether the appointment of the petitioner is promotion, the contention of respondent No. 4 is that the whole of the Corporation is like one department and the appointment of any employee to any higher post is promotion while the contention of the petitioner is that in order that an appointment may be termed promotion the post to which a person is appointed must be in the same line as the post that he already holds.' It will be observed that the words used in Bye‑law 10 are "promotion to any cadre of service". The language used is unhappy. The word "cadre" is not defined anywhere in the Bye‑laws. Reference was made to rule 2.9 of the Civil Service Rules, the principles of which, by virtue of rule I of the general rules framed by the Provincial Government under section 240 of the Punjab Municipal Act, read with section 3 of the Corporation Act, are to be applied to cases arising in the Corporation. "Cadre", according to this definition means; "the strength of the service or a number of services sanctioned as a separate Unit." Now there is nothing in the bye‑laws showing as to what con stitutes a service in the Corporation, and as to whether any and if so what services constitute a separate Unit. The words "promotion to any cadre" seem to imply that the person who is promoted was not already in that cadre and if the definition in rule 2.9 is to be accepted this would mean that when a person holding a post in one service is appointed to a pot in another service or holding a post in one Unit is appointed to a post in another Unit, that is a promotion. This is not in accord with the ordinary conception of promotion in a Government Department. Although the word `promotion' is not defined anywhere, it means the taking of a further step on a ladder. It is only where an employee after having gained experience in a particular post or having otherwise better qualified himself is appointed to a post which is regarded as a higher post in that particular line that it is called promotion. If a Sub‑Inspector were appointed an Executive Engineer, it will hardly be regarded as a promotion, although there may be a vast difference between the salaries which the two posts

8. While there is no doubt about the basic conception of promotion, it is to be remembered that the fixation of a line of promotion is entirely in the discretion of the employer. After all, it is open to the employer to place even posts carrying different duties in one cadre or unit so that an experience in one kind of duties gained by an employee should qualify him even for other kinds of duties and in that case we would have to regard an appoint ment to a post carrying higher salary and allowances a promotion. There is no bar to the Government placing the police and the magistracy in one line of promotion so that a Superintendent of Police can be promoted to the post of a District Magistrate. Nor is there any bar even to the police and engineering services being placed in the same line though it is extremely improbable that the Government will ever do so. The point to be kept in mind is that the fixation of a line of promotion depends entirely on the employer and if he provides that experience for one post will qualify for another it is not for any other person to say that the two posts are not in the same line of promotion. It appears to me that the intention of bye‑laws 9 and 10 was to make the whole Corporation one Unit for the purpose of promotion. Two methods of appointment are provided for in bye‑law

9. The first part of this bye‑law provides that when a post falls vacant the Chief Executive Officer shall report as to whether any of its employees is fit to be appointed to that post. Here, no distinction is made between employees and no separate departments are indicated. If an employee is not appointed in accordance with the recommendation of the Chief Executive Officer the post is to be advertised under the second part of bye‑law

9. Now bye‑law 9 exhausts the methods of appointment and if we say that even when appointment is made under the first part of bye‑law 9 it is not promotion, then in what cases shall we say there is a promotion? All that can be urged is that we should regard such appointments under the first part of bye‑law 9 promotion as appear to us to be in the line of promotion of the person appointed. But without anything in the bye‑laws declaring separate services or units that will be an unsatisfactory way of deciding the matter for the line of promotion has to be fixed by the employer. The intention in the first part of bye‑law 9 appears to be that all employees are placed in one group.

9. The words "promote to any cadre of service" also point to the conclusion that for promotion all posts in the Corporation are regarded as in the same line. As I have already observed these words seem to imply that the person appointed was not in that cadre before. The result is that appointment from one cadre to another is also regarded as promotion.

10. While I am of the opinion that for promotion all employees have been placed in the same group, I have also reached the conclusion that a case where appointment is made bye‑law 9 (2) after inviting applications from outsiders is not case of promotion and that "promotion" will cover only a case where appointment is made under bye‑law 9 (1). It is not difficult to demonstrate that the application of bye‑law 10 to a case under bye‑law 9 (2) would lead to absurd results and could not have been contemplated. Suppose that two employees have applied for an advertised post, and one of them is very senior to the other employee but applications have been received from outsiders also and it is found that the junior of the two employees tops the list by virtue of his qualifications and is the person best fitted for the job. It is also found that the senior is at the bottom of the list of the candidates. Neither of the two employees is unfit for the job. Now who should be appointed? If bye‑law 10 were applied to such a case, the result would be that the junior cannot be appointed because there is a senior who is better entitled to it by virtue of bye‑law 10 and at the same time, the senior should not be appointed because he is at the bottom of the list and every one of the outsiders is better than he is. To hold that bye‑law 10 will apply even to a case under bye‑law 9 (2) would result in preventing the Corporation from appointing the best person in a case under bye‑law 9 (2) whereas the sole object of that provision is that the best person available be appointed. It may perhaps be urged that the question of comparative merits of employees does not arise at all in case under bye‑law 9 (2), because it is only if no employee is found fit that bye‑law 9 (2) applies. This is not how I would read the bye‑law. The Corporation can resort to the second part of bye‑law 9 whenever it wants to fill the post by advertisement and the incompetency of the employees is not a condition precedent for it. If any doubt existed on this matter it would be resolved by reference to bye‑law 9 (3) which enables all Corporation employees to compete for any appointment. I would hold that where outsiders are also, allowed to compete it is not a case of promotion and bye‑law 10/D was not attracted at all in the present case.

11. The next objection in connection with bye‑law 10 is even more serious. What is there to show that the Corporation in appointing the petitioner did not have due regard to the seniority of respondent No. 4? They may have paid full regard to it and may still have appointed the petitioner because he was more competent. The bye‑law only enjoins due regard. It does not: force the Corporation to appoint the person who is senior. The Commissioner never even instituted an inquiry to determine whether the seniority of the respondent No. 4 had or had not been taken into consideration. He appears to have been of the opinion that respondent No. 4 being senior was entitled to be appointed. That is the reason why without any further enquiry he directed that respondent No. 4 be appointed. I would hold, there fore, that the resolution of the Corporation does not contravene bye‑law 10.

12. In connection with bye‑law 10, it may also be mentioned that the application of respondent No. 4 to the Commissioner against the resolution did not say that the resolution was illegal. All that was said was that exercise of power by the Corporation was unjust. The report of the Chief Executive Officer also said that the resolution was not proper, not that it was illegal.

13. There were some arguments in connection with `promotion' to which it is necessary to refer. It was urged on behalf of respondent No. 4 that if it was not a case of promotion the petitioner would be getting the starting pay of the Assessor's post, that is, Rs. 300 (the grade being Rs. 300‑20‑400/25‑500) whereas he is drawing the salary which he was already drawing as Lands Officer, i.e., Rs.

400. This, however, can hardly make out a case of promotion. It is open to the Corporation to pay him more than the initial salary of an Assessor. It may have done so even in the case of an outsider. When the petitioner was appointed a Lands Officer he was an outsider and still he was granted an initial salary of Rs.

355. Had the petitioner demanded the salary which he is already drawing, by virtue of some rule or bye‑law of the Corporation which said that in cases of promotion the salary would not be less than what the person appointed was already drawing there may be something in the argument, but no such rule or bye‑law has been referred to. Another argument is that he is holding a lien on his post because he is not yet confirmed and it may be that he is ultimately not confirmed in the post of Assessor at all in which case he will be retaining his post as Lands Officer. That again, is not a criterion for promotion. Out of fairness, even an employer other than the Corporation may have allowed the petitioner a lien on the post he was already holding during the period of confirmation if the petitioner was, at the time of his applying for this post, an employee of another person or body. An interesting point wits respect to promotion is this. The petitioner is at present getting Rs.

400. The initial pay of the post of Assessor, as already stated, is Rs.

300. If the petitioner had agreed to start with the initial salary of the Assessor, i.e., Rs. 300, or even he had begun with Rs. 375 as initial salary, then, according to the concession of learned counsel for the Corporation, it could not be a case of promotion because the salary would be less. According to him, every appointment of a person already in the employ of the Corporation is a promotion provided that the new salary is higher than the previous salary. Applying this criterion, the present case would not be a case of promotion at all had it not been for the fact that the petitioner continued to receive Rs.

400. Even if the petitioner had accepted R. 1 less than Rs. 400, it would, in accordance with the stand taken by the learned counsel for the Corporation, not be a case of promotion.

14. Next, I will consider objections (2) and (3) mentioned above, which relate to the power of the Commissioner under section 392 of the City of Lahore Corporation Act. I reproduce the section below:‑ "392 (1). If the Provincial Government or Commissioner are of opinion that the execution, of any resolution or order of the Corporation or of any other municipal authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation is not in conformity with law or with the rules or bye‑laws made thereunder, or is likely to lead to a breach of the peace or to cause injury ~or annoyance to the public or to any class or body of persons or is likely to cause waste or damage of municipal funds the Provincial Government or Commissioner may, by order in writing suspend the execution of such resolution or order or prohibit the doing of any such act. (2) A copy of such order of the Provincial Government or Commissioner shall thereupon be sent to the Corporation by the Government, or Commissioner. (3) The Corporation may, notwithstanding anything contained in this Act or the rules or bye‑laws made thereunder take the matter into consideration. (4) If the Corporation after having taken the matter into consideration are of opinion that the resolution, order or act is not in contravention of or in excess of the powers conferred by this Act, or any other law for the time being in force, or the execution of the resolution or the doing of the Act is not likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons is not likely to cause waste or damage to municipal funds, the Corporation shall pass a resolution accordingly and shall send a copy of the said resolution together with a copy of the proceedings relating to the said resolution to the Provincial Government or Commis sioner. (5) When the Provincial Government or Commissioner have considered the resolution passed by the Corporation and the proceedings relating to the said resolution, the Provincial Government or Commissioner may either cancel, modify or confirm the order passed by him under subsection (1) or take such other action in respect of the matter as may in the opinion of the Provincial Government or Commissioner be just or expedient having regard to all the circumstances of the case." This section empowers the Commissioner only to suspend the execution of the resolution and to send a copy of the order to the Corporation. The Corporation may then reconsider the matter and pass a further resolution and the Commissioner may, on a consideration of the new resolution, either cancel, modify or confirm the order passed by him under subsection (1) or take such other action as may appear to him just or convenient. That the Commissioner had not the power to direct the appointment of respondent No. 4 is not denied and is apparent on a perusal of section

392. In fact, the contention of learned counsel for the Corporation is that the order of the Commissioner does not amount to a direction to appoint but is only a recommendation. If the order by the Commissioner be regarded as one directing the appointment of the respondent, not only would the order be itself bad in law but the consequent order of the Chief Executive Officer appointing respondent No. 4 as Assessor would also be without jurisdiction and to this extent the present petition should succeed according to the concessions made by learned counsel for the Corporation. There can be no doubt on a perusal of the order of the Commissioner that he was not making a recommenda tion but was giving a direction for the appointment of respondent No. 4 in the purported exercise of his power under section

392. The order of appointment of respondent No. 4 is, therefore, illegal.

15. As regards the objection that the Commissioner has not observed the procedure enjoined by section 392 and has not referred back the matter to the Corporation as he should have done, it is pointed out by learned counsel for the Corporation that the Corporation had become defunct on the 16th of July 1956, the order of the Commissioner being dated the 25th of August 1956. An Administrator of the Corporation was appointed on the 25th of October 1956. This was done by means of Ordinance XX of 1956 which was subsequently made into an Act. It is contended that in view of the fact that the Corporation came to an end before the order of the Commissioner was passed, the procedure mentioned in section 392 became inapplicable and there was no need for the Commissioner to refer back the case to the Corporation. While I do not accept that the powers of the Commissioner were enhanced on account of the Corporation being defunct, I agree that on the date on which the order was passed there being neither a Corporation nor an Administrator, all that the Commissioner could do was to suspend the resolution and to wait till either the Corporation was restored or an Administrator was appointed and then to refer the case to the Corporation or the Administrator. He could not have passed the final order cancelling, modifying or confirming his original order till he had referred back the case.

16. The last attack of the petitioner on the order, an attack which in fact he stated at the beginning of his argument, is that the resolution appointing the petitioner had already been executed and there was, therefore, no occasion for an exercise of power under section 392 which empowers the Commissioner only to suspend the execution of a resolution and not the resolution itself. Reliance was placed in this connection on certain authorities under corresponding provisions of the Punjab Municipal Act wherein it had been held that the power to suspend the execution of the resolution could not be exercised after the resolution had already been executed.

17. That after the resolution has been executed, there can be no power to suspend the execution of the resolution is not a point on which there can be any dispute. The points to consider, however, are (1) whether a continuation of the employment of the petitioner is not an execution of the resolution of his appointment, and (2) whether the continuation of the employment cannot be prevented under that part of section 392 which says. "The Commissioner' may prohibit the doing of any act which is about to be done or is being done by or on behalf of the Corporation." As regards the first of these two points, it is to be remembered that everything that the Corporation is doing must be done by virtue of some resolution of the Corporation. Learned counsel for the petitioner urges that it would be difficult to say in the case of an employee who was appointed twenty years ago that his continuance in employment could be prevented by the Commis sioner on the ground that it is an execution of the resolution of appointment. This, he says, would certainly not be a use of section 392 contemplated by law. I agree that this would be so in case where the original appointment was in confirmity with law. But suppose the original appointment was in a post which is not sanctioned by the Corporation Act or the bye‑laws of the Corpora tion so that the appointment was entirely without jurisdiction. In that case, could not the further execution of that resolution of appointment be stopped even after twenty years? I see no reason for holding that the employment of such a person would not be an execution of the resolution of his appointment. However, I do realize that in a case where the original appointment is perfectly valid in law the case is distinguishable, for something has been done the legal consequence of which is the continuance of his employment. In such a case the moment an employee is appointed, the resolution can be said to be wholly executed, for what is done later by the Corporation is not voluntary but something that it is forced by law to do. The distinction which I am pointing out would also be discerned if we take for instance, the case of a completed contract. Suppose the Corporation by a resolution enters into a contract with a person to remove the rubbish from the Corporation area. If the contract is valid the Commissioner cannot exercise his powers to suspend the execution of the resolution and say that the party concerned should not remove the rubbish. That has now become the legal right of that person and there is no further voluntary act on the part of the Corporation which the Commissioner may stop. In the case of an employee too, once he is validly appointed to a particular post he is not only burdened with some duties but at the same time acquires some power. The exercise of that power is not a continuance of the execution of the resolution because once the power was granted the resolution has exhausted itself and the Corporation cannot be said to be doing something voluntarily when that employee exercises his power. He is entitled to exercise that power and cannot be prevented from doing so by the Corporation. Take the case of an Assessor. He possesses some powers of assessment under the Corporation Act and the exercise of those powers after his appoint ment is legally his authority. It cannot be said, when he is assessing value of property, that the Corporation is now taking any further action in the matter for having once made an appoint ment validly the consequences follow. The Commissioner could not take away the powers which the Assessor possesses under the Corporation Act simply by saying that he is suspending the execu tion of the resolution passed by the Corporation in respect of his appointment.

18. Similar is the case with respect to the words "anything being done". In a case where the original appointment is illegal, the Corporation may be continuously doing something because the person appointed has no legal authority to function or to continue in appointment, but if the original appointment be legal, the Corporation is doing nothing further. The person concerned has obligations as well as authority. The obligations he is bound to discharge and the authority he is entitled to exercise and the Corporation which has no power to prevent either the discharge of the obligations or the exercise of the authority cannot be said to be taking any further action in the matter.

19. In view of what is said above, the action of the Commis sioner would be unjustified even on account of the fact that the resolution had been executed and there was nothing further which was being done. However, the decision on this point is not really material, for the distinction which I have created is that the act of the Commissioner would be unjustified only where the appointment is in accordance with law. If it is m accordance with law his intervention would in the present cafe be otherwise unwarranted because under section 392 he can only act if either the act of the Corporation is in violation of law or is likely to lead to breach of peace or to cause injury or annoyance to the public etc., and it is conceded that in this case the Commissioner was interfering only on the ground that the Corporation had acted in contravention of law.

20. There remains only one point to be considered and that is the objection taken by respondent No. 4 as to the validity of the appointment of the petitioner on the ground that such appoint ment contravened bye‑law 9 (1). According to bye‑law 9 (1) when a post falls vacant, the Chief Executive Officer has to submit a recommendation as to whether any of the employees of the Corpo ration who possesses the qualifications mentioned in the rules for such appointment is fit for appointment to the vacant post. If a recommendation is made and accepted the post is not advertised. If the vacancy cannot be filled in this manner then the post is to be advertised. In the present case admittedly there was no compliance with bye‑law 9 (1), that is, there was no recommendation by the Executive Officer, or rather no opportunity was given to the Chief Executive Officer for recommendation as to whether any of the employees of the Corporation was fit for the post of an Assessor. The resolution of the 29th of September 1956 by which the previous extensions were cancelled directed that all those posts be advertised and after applications were received the matter was referred to a Committee of Councillors who made recommendations on the basis of which an appointment was made by the Corporation. It is urged on behalf of respondent No. 4 that the procedure pro vided in bye‑law 9 (1) is mandatory and non‑compliance with it renders the action of the Corporation illegal and without authority. The appointment of the petitioner, therefore, was illegal and has been properly set aside by the Commissioner.

21. On behalf of the petitioner it is contended that this argu ment is irrelevant because this was not the basis of the Commis sioner's order. It is also contended that the argument has no merit, for the procedure prescribed by bye‑law 9 is not mandatory but only directory. I will consider the second point first. I am not prepared to accede to the argument that unless bye‑law 9 (1) is complied with an appointment by the Corporation will be illegal and void. This bye‑law only prescribes the procedure to be observed by the Corporation when making appointments. Bye‑laws which prescribe only the procedure that is to be observed with the object of securing a good and proper appointment cannot, unless they clearly point to such a conclusion, be regarded as taking away I the power of Corporation to make an appointment‑a power which it possesses by virtue of sections 39 and 40 of the Corporation Act. Rules relating to procedure are framed with a particular object in view and they are in the nature of directions for the attainment of that object. According to bye‑law 9 (1) there should be a recom mendation by the Chief Executive Officer but the Corporation is not bound to accept this recommendation and I do not see why a Corporation may not in the very first instance decide that it is not prepared to consider only its employees and that it would have applications from outsiders also so that it may be able to get the best person available for the post. If the Corporation has made up its mind to consider outsiders also why should there be a farce of recommendations by the Chief Executive Officer? Even if the Chief Executive Officer were to recommend that there were persons fit for holding the job amongst the employees, and even if the Corporation were of the opinion that they were so fit, there is no rule which forces them to appoint their employees. They can say they would like to find out whether there are not amongst non- employees persons better suited to hold the post. This is clear from bye‑law 9 (3) which allows employees to apply for an advertised post. The argument that bye‑law 9 (1) creates a kind of right in the employees to be appointed in preference to outsiders is also together without force, for there is no obligation at all to appoint an employee even if the Corporation be of the opinion that the employee is quite fit for holding the post. The words of bye‑law 9 (2) are "if the vacancy cannot be filled as provided in the fore going paragraph" which only means if Corporation or the Standing Committee is not prepared to appoint without recourse to advertisement. Bye‑law 9 (2) does not say "if none of the employees is found fit". If the Corporation is not bound to appoint a fit employee and can insist upon, advertising the post after it has considered the recommendation of the Chief Executive Officer, I do not see why it cannot, even without waiting for a recommend ation, say that it would like to appoint the best suited person available whether from amongst the employees or outsiders.

22. It will be impossible for any person to contend that an appointment made without compliance with bye‑law 9 (1) will not confer any powers on the person who is appointed if the post carries with it statutory powers. If the Assessor is authorised as such to enter into some premises could it be said that if bye‑law 9 was not complied with to connection with his appointment he had no such powers at all. There may be several employees in the Corporation holding posts to which they were appointed without compliance with bye‑law 9 (1). Can it be said that these persons have neither powers granted to them by the Corporation Act nor is there between them and the Corporation any valid agreement as to the salary, allowances etc. These employees may have been holding posts for more than twenty years.

23. It must be clearly understood that in case we were to hold rule 9 (1) to be mandatory the appointment must be invalid in law. That is the well‑recognized distinction between directory and mandatory (or imperative) statute. As Crawford says in his Statutory Construction "A mandatory statute or statutory provision is one which must be followed in order that the proceeding to which it relates may be valid, and a directory statute or provision is one which need not be complied with in order that the proceeding to which it pertains may be valid. Still, it is not always easy to determine whether a particular statute is mandatory or directory. Perhaps the distinction between these two types of statutes is more clearly pointed out in the relatively early case of Hurford v. Omaha (4 Neb. 336): if the provision involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provision may be regarded as directory, but where it directs acts or proceedings to be done in a certain way and indicates that the compliance with such provision is essential to the validity of the act or proceeding, or requires some antecedent and prerequisite conditions to exist prior to the exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory." To the same effect is the comment of Maxwell (p. 373):‑ "The reports are full of cases dealing with statutory pro visions which are devoid of indication of intention regarding the effect of non‑compliance with them. In some of them the conditions, forms, or other attendant circumstances, prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of which did not affect its validity or involve any other consequence than a liability to a penalty, if any were imposed, for breach of the enactment The pro priety, indeed, of ever treating the provisions of any statute in the latter manner has been sometimes questioned, but it is justifiable in principle as well as abundantly established by numerous authorities." Similar are the words of Craies who uses the word "absolute" instead of "mandatory". He says (p. 240):‑ "If an absolute enactment is neglected or contravened, a Court of law will treat the thing which is being done as invalid and altogether void, but if an enactment is "merely directory it is immaterial, so far as relates to the validity of the thing which is being done, whether it is complied with or not."

24. If we reach the conclusion that the bye‑law is only directory there is no power in this Court to interfere, for there has been a valid appointment of an Assessor and we can neither set aside the appointment nor direct that a new appointment be made.

25. The other reply of the petitioner to this argument of respondent No. 4 (that non‑compliance with bye‑law 9 (1) is not the basis of the order of the Commissioner) might have raised a question of some difficulty, were it not for the fact that we are not concerned merely with the order of the Commissioner but even with the legality of the petitioner's appointment. So far as the order of the Commissioner is concerned it can be argued that the order cannot be supported on the ground of non‑compliance of the appointment with. bye‑law 9 (1) because the Commissioner may not have regarded it proper to suspend the resolution of the Corpo ration on the ground of such non‑compliance. But if I were of the opinion that non‑compliance with bye‑law 9 (1) makes the appoint ment invalid the petitioner would fail irrespective of the legality of the order of the Commissioner because the validity of the peti tioner's appointment is the basis of this petition.

26. I hold that the order of the Commissioner is invalid in law because there was no non‑compliance with bye‑law 10 and because he passed what purported to be final orders without compliance with the procedure prescribed in section

392. He had no power at the same time to direct the appointment of respondent No. 4.

27. I would accept this petition with costs against respondent No. 2 only. Per AKHLAQUE HUSSAIN, J.‑‑I agree in the order proposed by Hr my learned brother. The main question in this case relates to tires and legality of the Commissioner's order. I entirely agree, for the reasons given by my brother in paragraphs 14 and 15 of his judg ment, that the order of the Commissioner must be quashed. I am however, unable to agree that the provisions of the first paragraph of the ninth bye‑law are merely directory. It is clear from the scheme of the bye‑law that whenever there is a post to be filled, an employee of the Corporation, if found fit and suitable, must be appointed in the first instance, and that an outsider can bell, appointed only .if no suitable employee is available. There is nothing in the passages from Crawford, Maxwell and Craies, quoted in the judgment of my brother, which would go to show that this provision is merely directory. The words "if the vacancy cannot be fillet as provided in the foregoing paragraph" in para graph 2 of bye‑law 9, to my mind, do mean "if none of the employees is found fit". They certainly cannot mean "if the Corporation or the appointing authority does not choose to fill the vacancy in the manner provided by rule 9 (1)". Such an interpre tation will militate against the import of the words "cannot be filled as provided in the foregoing paragraph". Paragraph 1 of the bye‑law requires the appointing authority to consider "the fitness of the officials in service". The procedure laid down in the second paragraph can be availed of only when the authority does not, in its judgment, consider any of the employees fit for the post under consideration. Nor does paragraph 3 of the bye‑law permitting the employees to apply for a post, which has been advertised in accordance with paragraph 2, show that the rule under paragraph 1 is merely directory. Under the first paragraph an employee, if found suitable, is to be appointed; but under the second paragraph the best person available is to be appointed. It is possible that an employee, not found fit under paragraph I, may yet be found the best person available under the second paragraph. It is for this reason that the third paragraph permits the Corporation employees to apply whenever a post has to be advertised for under the second paragraph. The mandate, however; contained in bye‑law 9, as far as the present case is concerned, is that an outsider, even if more qualified, shall not be appointed if a suitable employee is available. In the present case, no outsider has been appointed. Both the petitioner and the respondent No. 4 are employees of the Corporation. As the appointing authority under both the paragraphs is the same and the recommendations of the Chief Executive Officer have to be M considered under either paragraph, respondent No. 4 cannot complain of any prejudice or injury to him. There is nothing to show that if the post had not been advertised he would have had any greater chance of being appointed. I, therefore, hold that there has been no substantial non‑compliance with bye‑law 9 in this case. A. H. Petition accepted.