P L D 1982 Peshawar 28 (PLP)

SARDAR FAKHRE ALAM, J.-Wali Muhammad petitioner, who was employed as Head in the Municipal Committee Charsadda, has by this Cons titutional Petition, called in question, the order dated 2-9-1980 of respondent No. 3, Director Local Government and Rural Development, Peshawar Division, Peshawar, by virtue of which he was transferred and posted as Head Clerk, Town Committee, Jehangira.

2. It was contended that the petitioner is an employee of 'the Local Council in National Pay Scale No. 6, who could not be transferred anywhere out of Municipal Committee Charsadda, under the North-West Frontier Province Local Council Servants (Transfer) Rules, 1980, framed under section 172 of the North-West Frontier Province Local Government Ordinance IV of 1979 and as such the transfer order is without lawful authority and jurisdiction. The contention put forth is not without merit. The Rules of 1981 came into force on the 2nd of June, 1980, and it was subsequent to it that on 2nd of September, 1980, the petitioner was transferred out of the Municipal Committee, Charsadda. Sub-rule (2) of rule 1 specifically lays down that these shall apply to the servants of Local Councils in National Pay Scale No. 8 and above. As such under the rules an employee of the Local Council could be transferred from the Local Council where he is serving, if he is an employee of National Pay Scale No. 8 and above.

2. However, it was contended on behalf of the respondents that prior to the promulgation of Local Government Ordinance IV of 1979, North-West Frontier Province Local Government Ordinance III of 1972 was in the field and under this Ordinance on the 27th of February, 1979, N.-W. F. P. Local Councils Servants (Transfer) Rules, 1979 were framed wherein servant of the Local Council is defined to be one, who is in any of the National Pay Scales Nos. 6 to

15. These Rules having not been specifically repealed by the Ordinance of 1980 or the Rules framed thereunder the same hold the field and the petitioner could be transferred from one Local Council to another Local Council, by the Deputy Commissioner, within the District as is the case of the petitioner. The argument advanced is misconceived. Section 4 of the Ordinance of 1979 contains the repealing and saving clauses and for better understanding of the controversy the same is reproduced :- "

4. Repeal and savings.--(1) The North-West Frontier Province Local Government Ordinance, 1972 (N.-W. F. P. Order III of 1972), is hereby repealed. (2) Notwithstanding the repeal of the North-West Frontier Province Local Government Ordinance, 1972 (N.-W. F. P. Ord. III of 1972), any appointment, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or. assessed, scheme prepared or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Ordinance shall, so far as it is not inconsistent with the provisions of this Ordinance, be deemed to have been respectively made or saved, issued, imposed or assessed, prepared or executed, entered into, institut ed, acquired, made or taken under this Ordinance." The Rules framed under Ordinance, 1972, dealing with the transfer of the Local Councils Employees were operative till the new Rules on the same subject were framed by the competent authority under the Ordinance IV of 1979. Both deal with the transfer of the Local Councils servants which would mean that on the coming into force of these Rules on the 8th of June, 1980, the earlier Rules stood Impliedly repealed and reliance cannot be placed on earlier rules which allow the transfer of Grade-6 employee. The Rules of 1980 under the Local Council Ordinance of 1979 only permit the transfer of a servant of a Local Council, who is in Grade 8 and above. Looking at the matter from another angle, the absurdity of the stand is further exposed for that under the old rules Deputy Commissioner was competent to transfer the employees of Grade 6 to 15, from a Local Council to another Local Council within the District. Under the Ordinance of 1979 and the Local Council Servant (Transfer) Rules of 1980. Deputy Commissioner nowhere figures in the hierarchy of officers invested with the powers. The impugned order has been passed by the Director, Local Government and Rural Development Department respondent No. 3, which designation figures in the Ordinance of 1979 and Rules framed thereunder. Had the action been taken under the old Rules the order should have been then by the Deputy Commissioner, but as has been observed earlier, those rules were not in the field and a Deputy Commissioner exercises no power under the Ordinance of 1979 or the Rules framed thereunder.

4. On the view of the matter that we take, finding the order dated 2-9-1980 of the Director, Local Government and Rural Development Depart ment, Peshawar Division, Peshawar, transferring the petitioner from Municipal Committee, Charsadda to Town Committee, Jehangira, being without lawful authority and jurisdiction, the same is set aside. However, we make no order as to costs. S. A. H. Petition dismissed.