1993 PLP (C (PLC(CS))

Asmat Kamal Khan for Respondents Nos. 2 and

3. Ch. Hamiduddin for Respondent No.

4. Date of hearing: 9th May, 1993. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises in the following circumstances. The petitioner is employee of the Municipal Corporation, Gujranwala and is working as a teacher in Middle School No. 12, Arfat Colony, Gujranwala, under its control. By an order passed by the Mayor, Municipal Corporation, Gujranwala dated 19‑12‑1988, the petitioner was promoted to a post in Basic Scale No. 15 in preference to respondent No.

2. This order of the Mayor was assailed by respondent No. 2 by filing an appeal, which was allowed by the Commissioner, Gujranwala Division, Gujranwala on 3‑9‑1989.

2. The petitioner has assailed the validity of this order of the Commissioner in this petition.

3. In support of this petition, Ch. Ghulam Qadir, Advocate, learned counsel for the petitioner has contended that the Commissioner was not competent to entertain or hear appeal against the impugned order of the Mayor, which related to the terms and conditions of the employees of the Municipal Corporation and as such, his order is wholly without jurisdiction.

4. Mr. Asmat Kamal Khan, Advocate, learned counsel for the contesting respondent has, however, submitted that as no such objection was raised by the petitioner before the Commissioner, he cannot be allowed to agitate it for the first time before this Court and that too in the amended petition.

5. There is considerable merit in the contention of learned counsel for the petitioner that the order of the Mayor, Municipal Corporation promoting (' the petitioner to higher grade was not appealable before the Commissioner.

6. According to section 166 of the Punjab Local Government Ordinance, 1979, any person aggrieved by an order passed by a local council or its Chairman may appeal to such authority, in such manner and within such period as may be prescribed. Prescribed according to section 2(xxix) of the Punjab Local Government Ordinance, 1979, means prescribed by rules. It will be appreciated that section 167 of the Ordinance does not, by itself, provide the forum for filing the appeal in the manner in which the same is to be filed. This matter has been left to 'be prescribed by the rules making authority by framing rules. It thus becomes necessary to examine as to whether the Commissioner has been authorised by any rule to hear the appeals against the orders passed by the Local Council or its Chairman in matters relating to service of its employees.

7. The first set of rules on the subject are the Punjab Local Councils (Appeals) Rules, 1980, but according to rule 1(3) itself, these rules do not apply to appeals by servants of local councils in matters relating to their service. The other rules, which may have some relevance, are the Punjab Local Councils. Servants (Efficiency and Discipline) Rules, 1981, Rule 17 of which confers a right, of filing an appeal upon the servant of a local council. But that right is restricted to cases where a penalty has been imposed upon the servant of the local council under the said rules and is not available in other cases (see Muhammad Ashraf v. Muhammad Siddique and 2 others (PLD 1977 Lah 1082) and Muhammad Akram v. Abdul Ghafoor etc. (1980 SCMR 541). Furthermore, it is also to be noted that though under rule 17; originally the power to hear the appeal was with the Commissioner but by a subsequent amendment by notification dated 3‑1‑1983, this power now vests with the Director, Local Council and Rural Development of the Division.

8. As the dispute between the petitioner and respondent No., 2 related to I their seniority and promotion to higher grade, it was governed by the Punjab Municipal Committee Service Rules, 1969. These rules did not provide for any appeal either on 19‑12‑1988 when the Mayor of Municipal Corporation passed the order which was impugned before the Commissioner or even when the appeal was decided by him on 3‑9‑1989. Subsequently, however, by Notification No. SOV.1‑30/81, dated 25th July, 1990, the rules were amended to provide an appeal against the order of the Local Council to the Commissioner by adding rule 13‑A. This amendment, however, has no applicability to the present case as the appeal of respondent No. 2 was decided by the Commissioner much before this amendment.

9. As regards the contention of learned counsel for the respondent that as no objection was raised to the competency of the appeal before the Commissioner during proceedings pending before him, it cannot be agitated for the first time before this Court, it may be observed that the petitioner was respondent before the Commissioner and even if it be assumed that he had failed to raise the objection, though it is disputed by the petitioner, yet this failure could not vest the Commissioner with the jurisdiction, which he did not possess. In Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 SC 314), it was ruled that mere submission to the authority of a Tribunal in capacity of a respondent neither confers any jurisdiction on the Tribunal nor deprives the petitioner of his right to challenge the order before the High Court in the exercise of its Constitutional jurisdiction. Reference may also be made to Riazul Haq v. Seth Khushi Muhammad and another PLD 1985 SC

223. This objection of learned counsel for the respondent, therefore, cannot prevail, In view of what has been stated above, this petition is allowed and the impugned order of the Commissioner, Gujranwala Division, Gujranwala is declared to be without lawful authority and of no legal effect. There shall be no order as to costs. AA./S‑361/L Petition accepted.