1974 PLP 114 (SCMR)

Special leave was granted in this case to consider the legality of the impugned order. Before coming to the merits of the case, it will be proper at this stage to consider the application of Hafiz Rehmat Ali intervener for impleading as a party in the present appeal. His contention is that he has received a letter dated the 14th April 1965 from the Chairman, Municipal Committee, Bure wala, that the Committee is not in a position to decide the question of grant of selection grade of S. V. teacher till the present appeal is disposed of. The intervener Hafiz Rehmat Ali has admitted that he filed a writ petition against the order of the Municipal Committee and that was dismissed in 1966. The facts fn his case are that he joined service as teacher in District Board, Sahiwal in 1942. In 1952, he was appointed in M. B. High School, Burewala as teacher at a salary of Rs.100. He took over charge of his post on the 22nd July 1952. He crossed his efficiency bar in 1955. The Examiner, Local Funds Accounts, on reference to him about the fixation of the petitioner's pay, gave a decision that he will not be granted selection grade till after I1 years from the date of his appointment. The intervener challenged this order in writ petition. In our opinion, the case of the intervener is quite different from the one under consideration and he is not a necessary party to the appeal in question. His application is, therefore, rejected. Now coming to the merits of the case, it will be noticed that the High Court dismissed the writ petition of the appellant on the following obser vation:‑ "From a report called for from the Municipal Committee, it appears, however, that the Provincial Government made the impugned order under rule 42 (c) of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963, which provides for a revision petition to the Government against any order made by the Commissioner, as the Controlling authority." It will thus be seen that the learned Judges of the High Court considered that the above rule provided for revision petition to the Government against any order made by the Commissioner as the Controlling authority. Mr. Raja Muhammad Anwar, learned counsel for the appellant, contend ed that rule 42 (c) of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, applies to cases of punishment only and does not authorise the Government to interfere with the order of the Controlling authority in any other matter. The contention of the learned counsel appears to be well founded. Rule 42 of the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963, reads as follows:‑ "Rule 42.‑The appellate authority for the purposes of these rules shall be ‑ (a) the Chairman of the Municipal Committee, where the authority is an officer of the Municipal Committee other than the Chairman or the Vice‑Chairman; (b) the controlling authority where the authority is the Municipal Committee, the Chairman, or the Vice‑Chairman; and (c) Government, where the authority is the Controlling authority." This rule is to be read with rule 40 of the above‑mentioned Rules. It reads as under:‑ "Rule 40.‑ A Municipal servant on whom a penalty has been imposed under rule 36, 37 or 38 may, within ninety days of the order in question, appeal to the appellate authority specified in rule 42." It will thus be noticed that rule 42 applies only to cases in which a penalty has been imposed under rule 36, 37 or

38. Admittedly, in the present case, no penalty has been imposed on the appellant. He was only granted selection grade. The case is not covered by rule 36, 37 or

38. In these circumstances, the High Court was not justified in relying on this rule and dismissing the writ petition to limine. In our opinion, the Provincial Government had no authority to interfere in the matter and the Commissioner's order was final. A decision reported in Ali Muhammad v. Muhammad Ramzan and others (1969SCMR46) was brought to our notice in which it was held that under the Municipal Administration Ordinance No. X of 1960, the Provincial Government is competent to interfere as Controlling Authority under section 110 of the Municipal Administration Ordinance. This decision has no application to the facts of the present case. In the present case, the Controlling authority was the Commissioner. This is clear from the Gazette Notification of West Pakistan, Extraordinary, dated the 24th November 1962, which is as under and appears at page 20 of P L D 1963 (Notification Part) ;‑ "In pursuance of the provisions of clause (1) of subsection (1) of section 3 of the Municipal Administration Ordinance, 1960 (X of 1960), and in supersession of the Health, Welfare and Local Government Department Notification No. E&A (HLG)‑13/20‑60, dated the 21st December 1960, the Governor of West Pakistan is pleased to direct that the Commissioners shall be the Controlling Authority in respect of all Municipal Committees, including Municipal Corporations within their respective Divisions." This notification shows that the Commissioners were the Controlling Authority of the Municipal Committees including Municipal Corporations within then respective Divisions. After carefully considering the arguments of the learned counsel for the appellant, we are satisfied that the Provincial Government was not competent interfere with the order of the Commissioner and that order is without lawful authority. In the result, the appeal is allowed with no order as to costs. Appeal accepted.