Lahore Development Authority Through its Director General Vs Javed Aslam etc

PLJ 2022 Lahore (Note) 108 Present: ABID AZIZ SHEIKH, J.

LAHORE DEVELOPMENT AUTHORITY, LAHORE--Petitioner versus JAVED ASLAM and others--Respondents W.P. No. 62929 of 2017, decided on 27.1.2022.

Lahore Development Authority (Appointment & Conditions of Service) Regulations, 1978-- ----Regln. 23(1)(2)--Punjab Employees Efficiency, Discipline and Accountability Act, (XII of 2006), S. 16--Constitution of Pakistan, 1973, Art. 199--Contractual service--Non-extension of service--Departmental appeal before respondent--Allowed and matter was remitted back to petitioner with direction to extension of service period--Writ petition for implementation of order--Jurisdiction of respondent No. 2--Question of jurisdiction was not considered at passing at time of orders--Right of appeal--Question of jurisdiction was neither adjudicated nor even considered at time of passing of impugned order by Respondent No. 2, but subsequently an attempt was made to cure this lacuna by seeking legal advice from Regulation Wing of S&GAD--Such order by no stretch of imagination can be treated as reasoned and speaking order-- As basic order is illegal and not sustainable, then any subsequent order and superstructure will also suffer same fate--Petition dismissed. [Para 8] B

&C

Lahore Development Authority (Appointment & Conditions of Service) Regulations, 1978-- ----Regln. 2(f)--Employee--Definition of "employee" under regulation 2(f) does not include a person on contract or work charge basis, Respondent No. 2 had no jurisdiction to decide appeal of Respondent No. 1 who was a contract employee and seeking extension of his contract. [Para 7] A Sahibzada Muzaffar Ali Khan, Advocate for Petitioner.

M/s. Manzoor Hussain Dogar and Sultan Fiaz Aura, Advocates for Respondent No. 1. Barrister Tayeeb Jan, Assistant Advocate General-Punjab for Respondent No. 2. Date of hearing: 27.1.2022.

JUDGMENT

This judgment will also decide Writ Petition No. 59814/2017 as common questions of law and facts are raised in both these writ petitions.

2.Relevant facts are that Lahore Development Authority (LDA) (hereinafter referred to as petitioner) filed Writ Petition No. 62929/2017 against the orders dated 21.12.2016, 29.03.2017 and 31.07.2017 passed by Respondent No. 2 (Secretary, HUD & PHED), (hereinafter referred to as Respondent No. 2) whereby the departmental appeal filed by Respondent No. 1 (hereinafter referred to as Respondent No. 1) was allowed and matter was remitted back to petitioner LDA, with direction that contract service of Respondent No. 1 be extended. On the other Respondent No. 1 filed connected Writ Petition No. 59814/2017 seeking direction against LDA, to implement the orders dated 21.12.2016 and 31.07.2017 passed by Respondent No. 2 for extension of his contract.

3.Learned counsel for the petitioner submits that contract service of Respondent No. 1 was not extended by Director General, LDA (D.G. LDA) vide order dated 16.12.2013, however, Respondent No. 2 which is not the Appellate Authority of the D.G. LDA under the relevant Regulations i.e. Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978 (Regulations) or under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act), has remanded the matter to D.G. LDA through impugned order dated 21.12.2016 with direction to extend the contract of Respondent No. 1. He submits that impugned orders being without jurisdiction, the same are liable to be set aside in this constitutional petition.

4.Learned counsel for Respondent No. 1 on the other hand submits that Respondent No. 2 is the Appellate Authority of D.G. LDA under Regulation No. 23(3) of the Regulations. Further submits that even under Section 16 of the PEEDA Act, the Respondent No. 2 being the Appellate Authority, could pass the impugned order which is binding on LDA. He further submits that LDA cannot challenge the impugned orders passed by Respondent No. 2 in the constitutional jurisdiction of this Court.

5.Learned Law Officer while appearing on behalf of Respondent No. 2 has supported the above arguments made by learned counsel for Respondent No. 1.

6.Arguments heard. The LDA is constituted under the Lahore Development Authority Act, 1975 (Act). Under Section 4(2) of the Act, the LDA shall be a body corporate with perpetual succession and a common seal with powers subject to the provision of the Act, to hold

property both movable and immovable and may by said name sue and be sued. Therefore, this constitutional petition filed by LDA through its Director General is maintainable.

7.On merits, the first contention of the petitioner LDA is that Regulation 23(1) and (2) of the Regulations, prescribe period of limitation for filing of appeal and review by the employees of LDA. The said Regulation 23 was amended on 17.10.2015 and sub-clause (3) was added in the Regulations, whereby right of appeal against the order passed by D.G. LDA has been provided to Respondent No. 2, however, the definition of "employee" under Regulation 2(f) does not include a person on contract or work charge basis, therefore, the Respondent No. 2 had no jurisdiction to decide the appeal of Respondent No. 1 who was a contract employee and seeking extension of his contract. The second contention of the petitioner LDA is that order dated 16.12.2013 by D.G. LDA, whereby the contract of Respondent No. 1 was not extended, was not passed under the provisions of PEEDA Act, therefore, the Respondent No. 2 could not assume the role of the Appellate Authority under Section 16 of the PEEDA Act and pass the impugned order dated 21.12.2016.

8.I have carefully perused the impugned order dated 21.12.2016 passed by Respondent No. 2, in the context of above legal arguments and noted that none of the above legal grounds were discussed or adjudicated in the impugned order dated 21.12.2016 by Respondent No. 2 before accepting the departmental appeal of Respondent No. 1. Record shows that ironically the Respondent No. 2 sought legal advice regarding his jurisdiction vide letter dated 23.06.2017 from the Regulation Wing of S&GAD, after passing of the impugned order dated 21.12.2016. This proves that question of jurisdiction was neither adjudicated nor even considered at the time of passing of impugned order dated 21.12.2016 by Respondent No. 2, but subsequently an attempt was made to cure this lacuna by seeking legal advice from Regulation Wing of S&GAD. Such order by no stretch of imagination can be treated as reasoned and speaking order, which was required to be passed by quasi-judicial authorities determining the rights of the parties. Therefore impugned order dated 21.12.2016 is not sustainable on this ground alone. As basic order is illegal and not sustainable, then any subsequent order and superstructure will also suffer the same fate.

9.In view of above discussion, the impugned order dated 21.12.2016 passed by Respondent No. 2 is set aside and the matter is remanded back to Respondent No. 2 to decide the

appeal of Respondent No. 1, afresh after hearing all concerned on the question of jurisdiction at the first instance, before touching merits of the case through reasoned and speaking order. Both these petitions are disposed of in above terms.

(Y.A.) Petition dismissed