All Pakistan Local Govt Workers Federation through Najaf Hussain Khan Vs Province of Punjab through Chief Secretary etc

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

LAHORE

Judicial Department W. P. No. 181136 / 2018

All Pakistan Local Government Versus Province of Punjab etc. Workers Federation

JUDGMENT

Date of hearing: 04.06.2021 Appellants by: Mr. Kashif Ali Chaudhry, Advocate Mr. Qamar Hayat, Advocate Mr. Zahir Abbas, Advocate Mr. Muhammad Sohail Anjum, Advocate Barrister Hassan Khalid Ranjha, AAG Respondents By: Baybi Tabassum, Law Officer Muhammad Naeem Akhtar, AD Legal,

LG&CD

ABID HUSSAIN CHATTHA, J: This single Judgment shall decide the titled as well as connected Writ Petitions No. 28623 / 2017, 59817 / 2018 and 12433 / 2019 as in all the said Petitions, common questions of law and facts are involved.

2.The Petitioners have impugned the order No. SO.ADMN-III(LG) Misc/2015 (P-I) dated 19.04.2017 (the “Impugned Order No. 1”), letters No. SO.Admn.III(LG)3- 180/2007 (P) dated 30.10.2017 (the “Impugned Order No. 2”) and No. SO.Admn.II(LG)4-154/ 2017 dated 14.02.2018 (the “Impugned Order No. 3”) halting the initial appointment, up-gradation, promotion or even appointment under Rule 17-A of the Punjab Civil Servants (Appointments & Conditions of Service) Rules, 1974 against the different posts declared as dying cadre / nomenclature issued under Section 85 of the

Punjab Local Government Act, 2013 (the “Act”) and prayed that the same be set aside being unlawful and unconstitutional. The Impugned Order No. 1, Impugned Order No. 2 and Impugned Order No. 3 shall hereinafter in this Judgment be collectively referred to as the “Impugned Orders”.

3.Before adverting to the issues raised and arguments advanced by learned counsel for the parties, it is imperative to reproduce the Impugned Orders as under:-

IMPUGNED ORDER NO. 1

GOVERNMENT OF THE PUNJAB

LOCAL GOVT. & COMMUNITY DEVELOPMENT

DEPARTMENT

Dated Lahore the 19th April, 2017

ORDER

No. SO.Admn-III(LG)Misc / 2015(P-1) In pursuance of Section 85 of Punjab Local Government Act, 2013 attached schedule of Establishment of Municipal Committee Dina is hereby issued, subject to following conditions:-

1.Keeping in view the changing requirement of local government system and in order to make local governments sustainable, no further recruitment / induction shall be made against following nomenclatures / posts which are now onward are declared as dying cadre / nomenclature:- Sr. Name of post Sr. Name of post No. No.

1 Fire Brigade Staff 25 Booking Clerk 2 Goods Exit Tax Staff 26 Malba Rent Collector 3 Octroi Staff 27 Moazan 4 Tonga Chaudri 28 Fero-Khalasi 5 Koora Clerk 29 Muharrar 6 Cooli / Plumber Cooli 30 Motivator 7 Mashki 31 Ahlmad 8 Water Carrier 32 Head Moharrar 9 Naib Qasid 33 Muhafiz 10 Baildar 34 Girdawar 11 Khansama OR Cook 35 Pervi Clerk 12 Road Roller Driver 36 Cart Man 13 Road Roller (Helper any 37 Typist Helper OR Cleaner) 14 Sanitary Promoter 38 Personal Assistant 15 Telephone Operator 39 Assistant Driver 16 Stenographer 40 Project Assistant 17 Registry Clerk 41 Tender Clerk 18 Mistry / Work Mistry 42 Gun Man 19 Security Guard 43 Assistant Librarian 20 Daftari 44 Khadim Masjid 21 Rehra Ban 45 Malaria Staff 22 Plague Quoli 46 Cleaner Water Supply 23 Foreman Disposal 47 PeroKar 24 Junior Clerk to be replaced by Computer Operator

2.The post of Tubewell Operator shall be read as Tubewell Operator-cum-Chowkidar.

3.Local Government cannot change the nomenclature / cadre Or convert the post.

4.Recruitment / induction on vacant post shall be made after making advertisement through office of the DGPR and observance of criteria, merit and codal formalities subject to approval of Govt. & availability of own source revenue.

5.In case an employee / Official / Officer of any other Department like Public Health Engineering / PHATA / LG&CD etc. is repatriated to his parent Department, the post held by him shall stand deleted automatically from the schedule of establishment of respective local government.

6.In future it will be treated as misconduct on part of appointing authority, if anyone is hired / employed on work charge / daily wager basis under any circumstance OR on any pretext.

-Sd-

SECRETARY

LG&CD DEPARTMENT

IMPUGNED ORDER NO. 2

URGENT / TOP PRIORITY / THROUGH E-MAIL

No. SO.Admn.III(LG)3-180/2007 (P)

GOVERNMENT OF THE PUNJAB

LOCAL GOVT. & COMMUNITY DEVELOPMENT

DEPARTMENT

(ADMN-III SECTION)

Dated Lahore the 30th October, 2017

To

1)All the Mayors / Chairmen Metropolitan Corporation, Municipal Corporations Municipal Committees and District Councils in Punjab

2)All the Chief Officers Metropolitan Corporation, Municipal Corporations Municipal Committees and District Councils in Punjab

Subject: APPOINTMENT AND UP-GRADATION OF POSTS

DECLARED AS DYING CADRE.

The undersigned is directed to refer to the subject and to state that various Local Governments have sought guidance / advice on the issue of appointments, re-naming / re-designation and up-gradation of the posts declared as Dying Cadre.

2.The case has been examined in the LG&CD Department. It is informed that keeping in view the establishment of new Local Government setup under PLGA, 2013 and to make the local governments sustainable, no further recruitment / induction shall be made against following nomenclatures / posts which are now onward declared as Dying Cadre:-

Sr. Name of post Sr. Name of post No. No.

1 Fire Brigade Staff 25 Booking Clerk 2 Goods Exit Tax Staff 26 Malba Rent Collector 3 Octroi Staff 27 Moazan

4 Tonga Chaudri 28 Fero-Khalasi 5 Koora Clerk 29 Muharrar 6 Cooli / Plumber Cooli 30 Motivator 7 Mashki 31 Ahlmad 8 Water Carrier 32 Head Moharrar 9 Naib Qasid 33 Muhafiz 10 Baildar 34 Girdawar 11 Khansama OR Cook 35 Pervi Clerk 12 Road Roller Driver 36 Cart Man 13 Road Roller (Helper any 37 Typist Helper OR Cleaner) 14 Sanitary Promoter 38 Personal Assistant 15 Telephone Operator 39 Assistant Driver 16 Stenographer 40 Project Assistant 17 Registry Clerk 41 Tender Clerk 18 Mistry / Work Mistry 42 Gun Man 19 Security Guard 43 Assistant Librarian 20 Daftari 44 Khadim Masjid 21 Rehra Ban 45 Malaria Staff 22 Plaque Quoli 46 Cleaner Water Supply 23 Foreman disposal 47 PeroKar 24 Junior Clerk to be replaced by Computer Operator

3.It is clarified that Dying Cadre posts will not be filled in, up-graded or re-designated / renamed in any case, on death or retirement of the incumbent holding the post. It is further clarified that the post of Dying Cadre will be deleted on retirement of death of the incumbent from the Schedule of Establishment of respective Local Government.

4.In view of the above, it is advised to implement the above instructions in letter and spirit. Any violation of these instructions will tentamount to mis- conduct and inefficiency leading to strike legal action under the law / rules.

-Sd-

SECTION OFFICER (ADMN-III)

IMPUGNED ORDER NO. 3

Through E-Mail

No. SO.Admn.II(LG)4-154/2017

GOVERNMENT OF THE PUNJAB

LOCAL GOVT. & COMMUNITY DEVELOPMENT

DEPARTMENT

Dated Lahore, the 14th February, 2018

To All the Chief Officers, Metropolitan Corporation / Municipal Corporations / Municipal Committees and District Councils in Punjab.

Subject: NO RECRUITMENT AND PROMOTION AGAINST DYING

CADRE POST.

The undersigned is directed to refer to the subject and to state that the Competent Authority has already approved the Schedule of Establishments of all the Local Governments vide order No. SO.Admn-III(LG)Misc / 2015(P-I) dated 19-04-2017 clearly mentioning that keeping in view the changing requirement of local government system and in order to make local governments sustainable, no

further recruitment / induction shall be made against following nomenclatures / posts which are now onward are declared as dying cadre / nomenclature:- 1 Fire Brigade Staff 25 Booking Clerk 2 Goods Exit Tax Staff 26 Malba Rent Collector 3 Octroi Staff 27 Moazan 4 Tonga Chaudri 28 Fero-Khalasi 5 Koora Clerk 29 Muharrar 6 Cooli / Plumber Cooli 30 Motivator 7 Mashki 31 Ahlmad 8 Water Carrier 32 Head Moharrar 9 Naib Qasid 33 Muhafiz 10 Baildar 34 Girdawar 11 Khansama OR Cook 35 Pervi Clerk 12 Road Roller Driver 36 Cart Man 13 Road Roller (Helper any 37 Typist Helper OR Cleaner) 14 Sanitary Promoter 38 Personal Assistant 15 Telephone Operator 39 Assistant Driver 16 Stenographer 40 Project Assistant 17 Registry Clerk 41 Tender Clerk 18 Mistry / Work Mistry 42 Gun Man 19 Security Guard 43 Assistant Librarian 20 Daftari 44 Khadim Masjid 21 Rehra Ban 45 Malaria Staff 22 Plaque Quoli 46 Cleaner Water Supply 23 Foreman disposal 47 PeroKar 24 Junior Clerk to be replaced by Computer Operator

2.It has come to the notice of the Competent Authority that despite declaring the above mentioned posts as dying cadre various local governments are frequently referring the cases to this Department to sought guidance / advice on the issue of recruitment and promotion etc. against “Dying Cadre Posts”.

3.The case has been examined in the LG&CD Department. It is informed that the post of dying cadre will automatically be deleted on retirement or death of the incumbent from Schedule of Establishment of respective Local Government and the dying cadre post shall not be filled in by initial recruitment, by promotion or even under Rule 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974.

4.In view of above, it is advised not to refer such case of dying cadre for guidance on the issue to this Department and to implement the government instructions in letter and spirit. Immediately delete / abolish the above mentioned posts notified as “Dying Cadre” from the approved Schedule of Establishment of concerned Local Government on retirement / death of the incumbent of the post and refrain from filling up Filling up above mentioned posts of “Dying Cadre” by initial recruitment, by promotion or even under Rule 17-A of the Rules ibid. Any violation of these instructions will tantamount to mis-conduct / inefficiency and strict disciplinary action will be taken against concerned Officer under Punjab Employees, Efficiency, Discipline and Accountability Act, 2006.

-Sd-

(MUHAMMAD TARIQ QURESHI)

ADDITIONAL SECRETARY (ADMN)

4.This case and the respective arguments of the learned counsel for the Petitioners and the Respondents revolve around the following three formulations:-

(i)The Impugned Orders are beyond the mandate of Section 85 read with Section 2(r) of the Act;

(ii)The Impugned Orders are ultra vires the Constitution for being issued without the approval of the Provincial Cabinet as held in the Mustafa Impex case; and

(iii)Rights conferred under the Rules framed under the Act cannot be taken away by a functionary of the Government through an executive order without amending the Rules.

5.Before addressing the aforesaid contentions, it is imperative to examine and analyze the applicable law. Section 2 deals with the definitions of various terms used in the Act. Section 2(r) of the Act envisages that "Government" means Government of the Punjab, Section 2(jj) defines "Prescribed" to mean prescribed by the rules; Section 2(yy) defines "Rules" to mean rules made under this Act. Sections 4, 85, 142, 143, 144, 146 and 154 of the Act are also relevant to address the questions framed above and importantly, read as under:-

4.Local governments to work within the Provincial framework.--(1) The local governments established under this Act shall function within the Provincial framework and shall faithfully observe the Federal and Provincial laws.

(2)In the performance of their functions, the local governments shall not impede or prejudice the exercise of the executive authority of the Government.

85.Municipal offices.-- The Government may, in the prescribed manner, issue a schedule of establishment for a Municipal Committee and such schedule may include planning, finance, municipal regulation and municipal infrastructure offices.

142.Local Government Servants.--(1) Notwithstanding anything contained in any other law, the Government shall, in the prescribed manner, create a service cadre for a local government or a group of local governments.

(2)The member of the following services shall continue to work in the local governments-

(a)Members of local council service appointed under the Punjab Local Council (Appointment and Conditions of Service) Rules, 1983;

(b)servants of the local governments appointed under the Punjab Local Council servants (Service) Rules, 1977;

(c)employees appointed under the Punjab Local Government District Service (Tehsil / Town Municipal Administrations Cadre) Rules, 2005; and

(d)employees of the Health and Education Department devolved under the Punjab Local Government Ordinance, 2001 (XIII of

(3)A local government other than a Union Council may, in the prescribed manner, absorb an employee mentioned in subsection (2) with the consent of the employee against an equivalent pay scale.

143.Appeals.--A person aggrieved by any order passed by a local government or its functionaries may prefer an appeal to such authority, in such manner and within such time as may be prescribed and an order passed in appeal shall be final.

144.Power to make rules.-- (1) The Government may, subject to previous publication and by notification in the official Gazette, make rules for carrying out the purposes of this Act.

(2)In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters specified in Part-I of Seventh Schedule.

(3)The rules made under subsection (1) shall meet the following considerations:-

(a)consistency with democratic decentralization;

(b)enhancement of welfare of the people;

(c)Fairness and clarity; and

(d)Natural justice and due process of law.

(4)Notwithstanding anything contained in subsection (1), the Government may, in an emergency and for reasons to be recorded, dispense with the requirement of previous publication required under subsection (1).

146.Delegation of powers.-- (1) The Government may, subject to such conditions as may be specified, delegate any of its functions under this Act to an officer subordinate to it except the power to make rules, to suspend or remove a Mayor or Chairman or to dissolve the local governments.

(2)Subject to the rules, a local government may delegate any of its powers, including financial powers under this Act or rules or bye-laws to the Mayor, Chairman, Deputy Mayor or Vice Chairman or any of its members or officers as it may deem fit, except the powers to make by-laws and to pass annual or revised budget.

154.Repeal and saving.--(1) The Punjab Local Government Ordinance, 2001 (XIII of 2001) is hereby repealed.

(2)Save as otherwise specifically provided in this Act, nothing in this Act shall affect or be deemed to affect anything done, action taken, investigation or proceedings commenced, order, rule, regulation, bye-laws, appointment, conveyance, mortgage, deed, document or agreement made, tax or fee levied, resolution passed, direction given, proceedings taken or instrument executed or issued, under or in pursuance of the Punjab Local Government Ordinance, 2001 (XIII of 2001) and any such thing, action, investigation, proceedings, order, rule, regulation, bye-laws, appointment, conveyance, mortgage, deed, document, agreement, tax, fee, resolution, direction, proceedings or instrument shall, if in force at the commencement of this Act, continue to be in force, and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under this Act.

(3)The Local Government Board established under the Punjab Local Government Ordinance, 1979 (VI of 1979) for the administration of officers and officials of the local council service and Tehsil / Town Municipal Administration cadre shall continue to function till the Board is re- constituted under this Act.

6.The conjunctive reading, examination and analysis of the above provisions of law ordained in the overall scheme of the law capsulated in the Act clearly establish that the Local

Governments are independent institutions in terms of the Act in line with the constitutional command under Article 140-A of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantees complete political, administrative and financial authority and independence to the Local Governments. However, in order to preserve adherence to provincial laws and overall supervision of the Local Governments, the latter are required to function within the ambit of the provincial framework. Section 85 read with Sections 2(r), 2(jj) and 2(yy) of the Act unequivocally and inescapably reserve the issue of schedule of establishment for a Municipal Committee for the Government itself and that too by placing a clog or embargo upon the right of the Government requiring it to be done through Rules made under the Act. This mandate of Section 85 of the Act is fortified in specific terms under Section 142 of the Act which states that notwithstanding anything contained in any other law, the Government shall, in the prescribed manner, create a service cadre for a local government or a group of local governments. Similarly, the existing appointments and cadres under various existing service Rules were specifically preserved. Item No. 7 of Part-1 (Rules) of Seventh Schedule to the Act unambiguously reserves the subject of Local Government (Servants) to be governed by Rules. Under Section 146 of the Act, the Government is prohibited in specific terms to delegate the power of making rules under this Act to an officer subordinate to it. The existing rules and actions taken in this regard are also saved including service and administrative cadres. The powers exercised by the functionaries through the Impugned Orders are not bestowed upon them and are without any legal cover in the scheme of the law embodied in the Act. Infact, the functionaries while issuing the Impugned Orders have also made Section 143 with respect to appeals as redundant. The Impugned Orders issued by the functionaries of the Department were without any lawful authority. It is trite law

that when the law requires a particular thing to be done in a particular manner, it must be done in that manner alone. Even otherwise, when an act is required by law to be done through the Rules or in other words through the law itself, the exercise of executive authority in respect thereof, would be illegal and unconstitutional. Therefore, it is abundantly clear that the Impugned Orders were issued in complete disregard and in violation of the various provisions of the Act and as such, the Impugned Orders are ultra vires to the Constitution of Islamic Republic of Pakistan and beyond the scope of the Act. Reliance is placed on cases titled, Zarai Taraqiati bank Ltd and others v. Said Rehman and others, 2013 PLC (C.S.) 1223, Muhammad Khalid Qureshi v, Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another, 2017 PTD 805, Zarai Taraqiati Bank Limited and others v. Said Rehman and others, 2013 SCMR 642.

7.The next question before this Court is as to whether the law laid down in the case of Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others, PLD 2016 Supreme Court 808 was violated in the issuance of the Impugned Orders. The learned Law Officer conceded before this Court that no approval was obtained by the Ministry of the Local Government and Community Development from the Provincial Cabinet. He argued that the case of Mustafa Impex (Supra) is not applicable in this matter rather the said Judgment applies to the matters of widespread significance or that of constitutional or monitory implications, having extensive impact. The present matter, he stressed, relates only to change of names or substituting posts at municipal level and hence, sending of summaries to Cabinet in such trivial matters frustrate the departmental working of the Province. The Local Governments are autonomous institutions and they are empowered by law to function independently. The issue raised in the titled Petition

relates to policy matter which is merely an executive function and hence, constitutional Petition is barred under the law. He submitted that the Punjab Local Council Servants (Service) Rules, 1997 do not specify any cadre rather jointly apply to all the local governments. He defended the Impugned Orders on the ground that some posts / cadres have become redundant and only fresh recruitments against the said posts / cadres have been banned as a temporary measure. Hence, the Impugned Orders do not take away any vested right of the employees and the Mustafa Impex case has no relevance. It is hard to agree with the learned Law Officer. In my view, the Mustafa Impex case was fully attracted to the facts and circumstances of the case. However, since this Court has held that the actions taken through the Impugned Orders were required to be taken through amendment in the Rules in accordance with the mandate of the Act, therefore, the judicial review of the executive powers exercised by the executive functionaries of the Department is for the time being not a relevant consideration in the context of the Mustafa Impex case.

8.The upshot of the above discussion is that this as well as connected Writ Petitions are allowed and the Impugned Orders are declared as void ab initio and set aside being ultra vires to the Constitution and the Act.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*

Announced in open Court on 07.07.2021.

JUDGE