1990 PLP 1254 (SCMR)

‑‑‑‑R.6(5)‑‑‑West Pakistan Local Councils and Municipal Committees (Services) Rules, 1963, R.9(c)‑‑‑Promotion of employee to higher post‑‑‑Respondent challenging such promotion‑‑‑Departmental Authority in appeal, setting aside appellant's promotion‑‑‑Appellant's Constitutional petition against the order of Authority remained unsuccessful‑‑‑Both the parties conceded before Supreme. Court that Zila Council of which the parties were employees, had not adopted the Rules of 1968, thus case of promotion had to be adjudged under Rules of 1963. (c) West Pakistan Local Councils and Municipal Committees Services Rules, 1963‑‑‑ ‑‑‑‑R.9(c)‑‑‑Factual controversy relating to promotion remaining unresolved‑‑ Remedy‑‑‑Factual controversy being whether employee's promotion was from Grade‑5 to Grade‑8 post or a transfer from one class to another‑‑‑Material on record was insufficient to resolve the controversy in view of conflicting claims of parties‑‑‑Supreme Court accepting appeal set aside judgment of High Court and that of Departmental Authority: remanded the case to Authority for decision afresh in accordance with law applicable. Tallat Farooq Sheikh, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant. M.Nawaz Abbasi, Assistant Advocate‑General Punjab and Rao M. Yousaf Khan, Advocate‑on‑Record for Respondents Nos.l and

2. Bashir A. Mujahid, Advocate Supreme Court and Ch. M. Aslam, Advocate‑on‑Record (absent) for Respondent No.3. Date of hearing: 12th June, 1989. SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine whether the West Pakistan Health Department Vaccination Subordinate Services Rules, 1968 (hereinafter referred to as the 1968 Rules) govern the case of the parties or the West Pakistan Local Councils and Municipal Committees Services Rules, 1963 (hereinafter referred to as the 1963 Rules).

2. The post of Assistant Superintendent Vaccination fell vacant in Zila Council Kasur. The Chairman, who was the competent authority, promoted Muhammad Zubair appellant on that post. Muhammad Bashir respondent No.3, challenged the promotion. The Commissioner Lahore Division as the appellate authority applied rule 6 sub‑rule (5) of 1968 Rules and allowed the appeal setting aside the promotion of the appellant. A Constitution Petition was then filed by the appellant which failed.

3. It is conceded by the learned counsel for both the parties that the Rules of 1968 are not shown to have been adopted by the Zilla Council concerned and, therefore, the case of promotion had to be adjudicated upon under 1963 Rules. After such an admission in the ordinary course it would have been possible for us to decide the matter ourselves by reference to the Rules but we are confronted with a factual controversy which we find it not possible to resolve with the material on record before us. The factual controversy is whether it was a case of promotion from Grade‑5 to Grade‑8 post or a transfer from one class to another. The contention of the appellant is that while he is in Grade‑8 the promotion post is also in Grade‑8, and belongs to a different class, and under the Rules, the promotion is to be made from the lower grade to the higher grade or from one t., class to another. The contention on the other side is that the promotion post is in Grade‑8 that the appellant was already in Grade‑8 and it was not a case of promotion but of transfer from one post to the other, in the same grade but in a different class. The respondent being in lower grade was alone to be considered under the Rules of 1963 for promotion to the post. We find that the material on record is not sufficient to dispose of this controversy and consequently while accepting the appeal, setting aside the judgment of the High Court and that of the Commissioner, remand the case to the Commissioner for decision afresh in accordance with the law applicable. No order as to costs. AA./M‑1118/S. Case remanded.