P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Faizullah Khan, who used to be the Secretary of the Multan Municipal Committee, set up under the Punjab Municipal Act, 1911, has brought this writ petition against the Government of West Pakistan, through the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department, Lahore, Commissioner, Multan Division, Multan, and N. H. Farshori, Chief Officer, Municipal Committee, Multan. The prayer in the writ petition is that a writ of mandamus be issued to respondent No. I to withdraw the order passed on the 15th of September 1961 which was to the effect that Faizullah Khan was no longer a servant of any Municipal Committee, and that a writ of quo warranto be issued to respondent No. 3 to justify the order under which he was holding the office of the Chief Officer of the Municipal Committee, Multan. The petition was resisted by all the three respondents, respondents Nos. I and 2 being represented by Mr. Abid Hassan Minto, Advocate, who appeared on being instructed to do so by the Advocate‑General, West Pakistan, and respondent No. 3 appeared in person.

2. Before proceeding further, I would give some of the material allegations in the petition. Faizullah Khan joined the service of the Multan Municipal Committee in 1940 and was appointed its Secretary on the 20th of October 1955 under orders of the Provincial Government, being confirmed in that appoint ment on the 15th of September 1955 by means of an order, a copy of which is on the record as Annexure A. On the 7th of May 1959, that is shortly after the Municipal Administration Ordinance, 1960 (President's Ordinance X of 1960), which appeared in the Extraordinary Issue of the Gazette of Pakistan, dated the 11th of April 1960, on being promulgated by the President of Pakistan, was enforced in the Province of West Pakistan, Mr. Ata Muhammad Khan Leghari, who was then the Commissioner of Multan Division, directed that Malik Ghulam Mohy‑ud‑Din who bad resigned his post of Deputy Settlement Commissioner, Lyallpur, was appointed the Chief Officer of the Lyallpur Municipal Committee, and Sheikh Muhammad Abdur Rahman, Executive Officer of the Municipal Committee, Lyallpur, was appointed as Chief Officer of the Municipal Committee, Multan. On the 11th of June 1960, Mr. Ata Muhammad Khan Leghari, the then Commissioner, Multan, passed an order appoint ing Lt.‑Col. Azizullah Khan Alizai to be the Chief Officer of the Municipal Committee, Multan. On the 15th of August 1960, Malik Karam Dad, who held the post of the Deputy Commis sioner substantively but appears to have been holding the additional charge as the Commissioner, Multan Division, passed an order that as Faizullah Khan petitioner had become surplus owing to the appointment of the Chief Officer by the Government, he was offered the post of the Chief Officer, Burewala, on his own pay and grade with immediate effect. This order of Malik Karam Dad is contained in his memorandum No. 17649 dated the 15th of August 1960, a copy of which is on the record as Annexure E. It is in the following terms :‑ "From The Commissioner, Multan Division. To The Chairman, Municipal Committee, Multan. Dated Multan the 15th August 1960. Subject.‑ Absorption of M. Faizullah Khan, Secretary, Municipal Committee, Multan. Reference Your Memo. No. 1713‑G dated the 9th July 1960, to the Deputy Commissioner, Multan. Memo. M. Faizullah Khan, who has become surplus owing to the appointment of a Chief Officer by the Government is offered a post of Chief Officer, on his own pay and grade, in the Municipal Committee, Burewala, with immediate effect. He should please be relieved and directed to join his new assign ment Immediately.

2. In case he declines to accept this offer, his services should be deemed to have been terminated as laid down in section 130 of the Municipal Administration Ordinance. (Sd.) Karam Dad Khan, Commissioner, Multan Division." It appears that Faizullah Khan petitioner did not accept this order of Malik Karam Dad as correct and did not take over as the Chief Officer, Municipal Committee, Burewala, but made some representation to higher authorities and an order appears to have been passed on the representation on the 15th of September 1961. A copy of that order, which is Annexure L to the petition, reads as under: ‑ "Copy of Memo. No. SOT (IG)‑Multan‑(35) 60 dated the 15th September 1961, from the Secretary to Government, West Pakistan, Basic Democracies and Local Government Department, to the Commissioner, Multan Division, Multan. Sub: Representation of Khan Faiz Ullah Khan Saduzai, with reference to the correspondence resting with your memo. No. DB‑1‑14/60 dated 8‑4‑61, on the above subject, I am directed to say that Government have considered the representa tion of Khan Faiz Ullah Khan Saduzai, Ex‑Secretary, Municipal Committee, Multan, and have arrived at the conclusion that on the appointment of Lt.‑Col. Aziz Ullah as Chief Officer, Municipal Committee, Multan, Mr. Faiz Ullah Khan became surplus. Under the provisions of section 130 of the Municipal Administration Ordinance, 1960, he could either be appointed in the same Committee on some other suitable post or some corres ponding post elsewhere. In pursuance of this statutory provision of law, and in accordance with Government's instructions embodied in Memo. No. SO (L)‑1‑11/60 dated 19‑7‑60/R‑1/Corr. Commissioner, Multan Division, appointed him as Chief Officer, Municipal Committee, Burewala, without any change or loss in the emoluments which he drew as Secretary, Municipal Com mittee, Multan. He has not taken up the duties of this post so far. Taking all these factors into consideration, Government have decided that as Mr. Faiz Ullah Khan did not accept the alternative post of Chief Officer, Burewala, when it was offered to him, he may be retired from service and allowed such gratuity/ pension as you, as Controlling Authority, may decide subject to Rules. Further action may kindly be taken accordingly and Mr. Faiz Ullah Khan may also be informed of Government's decision. The record received from your office In connection with the disposal of this case is returned herewith. Kindly acknow ledge receipt." The case of the petitioner was that he remained Secretary of the Multan Municipal Committee, set up under the Municipal Administration Ordinance, 1960, and no one could have been appointed to that post even if the name of that post was changed, and that at any rate the appointment of Mr. N. H. Farshori, respondent No. 3, which was made by the Commis sioner, Multan Division, was invalid. Both of the above assertions were controverter by the respondents.

3. I will first of all take up the contention of Mr. Nasim Hasan Shah to the effect that the appointment of respondent No. 3 as Chief Officer of Multan Municipal Committee, which was made by the Commissioner of that Division, by means of an order, a copy of which is not on the record was invalid because at the time when this order of appointment was made, the Commissioner was incompetent to make that appointment, as be was not the Controlling Authority of the Municipal Committee. Reliance In this regard was placed by‑ learned counsel for the petitioner on the definition of the words "Controlling Authority" which is given in clause (10) of section 3 of the Municipal Administration Ordinance, 1960, as under: - " `Controlling Authority' means in the case of such Municipal Committees or class of Municipal Committees as the Govern ment may from time to time, by notification in the Official Gazette, specify in this behalf, the Government, and in all other cases, the Commissioner." It may be mentioned here that though the Municipal Adminis tration Ordinance was promulgated by the President of Pakistan on the 11th of April 1960, its provisions other than sections 1 and 3 were enforced on the 1st of May 1960, while sections 1 and 3 were directed by the Ordinance itself to come Into force at once. On the 1st of May 1960 a number of notifications some of which are relevant for the purposes of the present writ petition were issued by the Governor of West Pakistan. One of these notifications was No. SOH (L)1‑15/60, dated the 1st of May 1966 which appeared In the West Pakistan Government Gazette, Extraordinary of that date. By this notification it was declared that for the Municipal Committees of Peshawar, Rawalpindi, Lahore, Lyallpur, Multan and Hyderabad, the Government was to be the Controlling Authority. By paragraph 6 (2) of Noti fication No. SOH (L)1‑15/60, dated the 1st of May 1960, it was declared that the above‑mentioned six Municipal Committees were to be municipalities of the first class, while all the others were to be municipalities of the second class. I might mention that as a result of a notification issued on the 31st of December 1950, the Commissioner of Multan Division became the Controlling Authority of the Municipal Committee of Multan, though it continued to be a Municipal Committee of the 1st Class. The result of the notification, which was issued in December 1960, would be that the Commissioner would be competent to make appointments of servants of the Municipal Committee. The fact, however, that in December 1960, the Commissioner of the Multan Division could have appointed respondent No. 3 would not validate his appointment by the Commissioner on a date prior to the 31st December 1960, because at that time, the Commissioner was incompetent to make it. Mr. Abid Hassan Minto produced for inspection of the Court an order of the appointment of Lt.‑Col. Aziz Ullah, a predecessor in‑office of respondent No. 3, as the Chief Officer of the Municipal Committee, Multan, which was passed by the Governor of the Province on the 16th of July 1960. It appears that after he had passed the order of appointment of Lt.‑Col. Aziz Ullah as the Chief Officer of Municipal Committee, Multan, the Commissioner Multan Division realised that he was Incompetent to make the appointment and referred the matter to the Provincial Government, whereupon the Governor passed an order of appointment of Lt.‑Col. Aziz Ullah. Mr. Abid Hassan Minto was asked to find out whether any order of the Governor regarding the appointment of respondent No. 3 as Chief Officer of Multan Municipality existed and he replied after making inquiries that no such order existed. As it is not known on' what date Mr. N. H. Farshori was appointed the Chief Officer, i.e., whether the appointment was made before or after the 31st of December 1960, on the latter of which dates, as already mentioned, the Commissioner of Multan Division had been declared to be the Controlling Authority for the Multan Municipality, it cannot be held that the appointment was made by the Commissioner at a time at which he was incompetent to do so. It follows, therefore, that a writ of quo warranto cannot Issue against respondent No. 3 on the ground that at the time of making the appointment the Commissioner was incompetent to make it; though an appropriate writ may issue if the other contentions raised on behalf of the petitioner succeed.

5. I will now take up the other contentions raised by learned counsel for the petitioner. Doctor Nasim Hasan Shah, Advocate, contended that by virtue of section 4 of the Municipal Administration Ordinance (X of 1960), Faizullah Khan petitioner continued to be Secretary of the Municipal Committee, Multan, in spite of the fact that his appointment had been made at a time when the Punjab Municipal Act, 1911, was in force and that Act had been repealed by the Ordinance of 1960. Section 4 of the Ordinance of 1960 is In the following terms :‑ "

4. Repeals and Savings.‑(1) on the coming into force of this Ordinance in any area. the enactment mentioned in the First Schedule shall if and in so far as applicable to that area, stand repealed. (2) Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, or bye‑law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, Imposed or assessed, entered Into, instituted or taken under this Ordinance." Prima facie, therefore, Faizullah Khan continued to be the Secretary of the Municipal Committee, Multan, brought Into being under the provisions of the Municipal Administration Ordinance 1960. To controvert the claim of the petitioner that he continued to be the Secretary of the Municipal Committee, Multan set up under the Ordinance of 1960, Mr. Abid Hassan Minto, Advocate, learned counsel for respondents Nos. 1 and 2 placed reliance on two provisions of the Ordinance. One of these was section 29 which reads as under: ‑ "

29. Servants of Municipal Committee, etc.‑The Govern ment may from time to time specify the posts in the Municipal Committees which shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VIII of Part II of the Order, and the other provisions of that Chapter shall mutatis mutandis apply in relation to the servants of Municipal Committees as they apply in relation to the servants of Local Councils as if the said provisions had been enacted in this Ordinance, and (a) any reference to a Local Council were a reference to a Municipal Committee ; (b) any reference to the Controlling Authority were a reference to the Controlling Authority under this Ordinance ; (c) any reference to the Order were a reference to this Ordinance ; and (d) any reference to Secretary included a reference to Chief Officer", and the other was section 130 which is couched in the following terms :‑ "

130. Abolition of offices or posts.‑(1) If as a consequence of the enforcement of this Ordinance, any post held by a person under a local body or other local authority is abolished or its designation changed, such person‑ (a) may be appointed to such corresponding or other suitable post, if any, on such terms and conditions as the Controlling Authority may determines; and (b) if there be no corresponding or other suitable post under the Municipal Committee to which he may be appointed, then, notwithstanding anything to the contrary contained In any other enactment, rule or contract, shall be deemed to have vacated the post on such enforcement. (2) If the service of any person stands terminated under the provisions of subsection (t), such person shall be paid the gratuity and pension to which he may be entitled under the rules of his service, and where he is not so entitled, such gratuity or pension as the Controlling Authority may, subject to rules, determine." Mr. Minto urged that because clause (d) of section 29 was to the effect that a reference to Secretary included a reference to the Chief Officer, the post of Secretary of a Municipal Committee in the entire Province of West Pakistan ceased to exist and was replaced by the post of a Chief Officer and, therefore, the provisions of section 130 of the Ordinance of 1960 came into force with the result that the order of Malik Karam Dad Khan dated the 15th of August 1960, whereby Faizullah Khan was appointed the Chief Officer of the Municipal Committee, Burewala, was perfectly valid. Mr. Abid Hassan Minto went on to say that as Mr. Faizullah Khan had not obeyed that order and had become a surplus employee the Provincial Government was well within its right In passing the impugned order dated the 15th of September 1961. In order to support his contention that the post of Secretary in the Municipal Committees in the West Pakistan ceased to exist when such Municipal Committees were set up under the Municipal Administration Ordinance, 1960, Mr. Abid Hassan Minto relied on the following communications which were issued by the office of the Secretary to the Government of West Pakistan:‑ (1) Memorandum No. SOH (L) 1‑II/60, dated the 6th May 1960, sent by Mr. S. Alamgir, the then Secretary, to all Commissioners of Divisions in West Pakistan, a copy of which is attached to the joint written statement of respondents I and 2 as Annexure 'B', and (2) Memorandum No. SOH (L) I‑II/60, dated the 19th July 1960, which was sent to all Commissioners of Divisions (except Kalat) in West Pakistan, a copy of which is Annexure 'C' to the joint written statement filed by respondents 1 and

2. There can be no manner of doubt that these communications are to the effect that the post in all Municipal Committees, which was formerly designated as that of a Secretary, was to be called that of the Chief Officer, but the question for determination is whether these orders were allowed by law, and if they were not, whether they could take away the right of any person, who, by reason of the provisions contained in section 4 of the Ordinance of 1960, was to continue to hold the post that he was holding under any of the Acts regarding Municipal Administration which had been repealed by the Municipal Administration Ordinance, 1960.

6. In order to fully understand the scope of section 29 of the Municipal Administration Ordinance, 1960, on which Mr. Abid Hassan Minto, learned counsel for respondents Nos. 1 and 2, placed his reliance, one has to keep before him the provisions of Article 44 of the Basic Democracies Order (President's Order No. 18 of 1959), which Article has been referred to in the section. Article 44 of the Basic Democracies Order, 1959, enjoins the constitution of a Local Councils Service for each of the Provinces of the West Pakistan and the East Pakistan. Article 44 of the Basic Democracies Order, 1959, and Article 45 of that Order, which is a complement of Article 44, read as under:‑ "

44. Local Councils Service.‑(1) There shall be constituted a Local Councils Service for each Province in such manner and subject to such conditions as may be prescribed. (2) The Government may from time to time specify the posts in the Local Councils which shall be filled by persons belonging to the Local Councils Service of the Province." "

45. Servants of Local Councils.‑(1) The Controlling Authority may, on the prescribed terms and conditions, appoint a Secretary and one or more Principal Officers to be the servants of a Local Council who shall perform such functions as are assigned to them In relation to such Local Council by or under this order. (2) A Local Council, may, and If so required by the Con trolling Authority shall, on the prescribed terms and conditions, employ such other servants as are deemed necessary for the efficient performance of its functions under this Order. (3) If in the opinion of the Controlling Authority the number of servants employed by a Local Council under clause (2), or the remuneration fixed for any of them, Is excessive, the Local Council shall, on being required by the Controlling Authority to do so, reduce the number of, its servants or the remuneration of any of them, as the case may be. (4) Subject to the provisions of this Order and the rules, (a) the Controlling Authority may suspend, remove, dismiss, or otherwise punish any person appointed under clause (1); and (b) the Local Council may suspend, remove, dismiss or otherwise punish any person appointed under clause (2). (5) The Controlling Authority may transfer any of the persons appointed under clause (1) from one Local Council to another Local Council within its jurisdiction." A reading of section 29 of the Municipal Administration Ordinance, 1960, and Articles 44 and 45 of the Basic Democracies Order, 1959, reveals that clause (d) of section 29 of the Ordinance means no more than this that if the servant of a Municipal Committee performing the functions which are ordinarily performed by the Secretary had been designated as a "Chief Officer" under the provisions of an Act repealed by the Ordinance of 1960, the provisions of Articles 44 and 45 of the Basic Democracies Order, 1959, shall be applicable to that Municipality. This provision appears to have been considered necessary because the Sind District Municipal Act, 1901 (Sind Act III of 1901), which is one of the Acts repealed by the Ordinance of 1960, used the designation "Chief Officer" for a servant of the Municipal Committee who performed functions in no material respect different from functions of a Secretary in Municipal Committees set up under other Acts such as the Punjab Municipal Act, 1911. I have no hesitation in holding that section 29 of the Municipal Administration Ordinance, 1960, did not enjoin the appointment of a "Chief Officer" for a Municipal Committee set up under the Ordinance. However, Memorandum No. SOH (L) I‑II/60, dated the 6th of May 1960, which has been mentioned in the preceding paragraph, was open to the interpretation that "Chief Officers" were to replace Secretaries and it is clear that the Commissioners of Divisions appointed "Chief Officers" on the authority of this memorandum. It further appears that it was because of the instruction contained in this memorandum that Mr. A. M. Khan Leghari, the then Commissioner of Multan, made appointments of Chief Officers in spite of the fact that the Municipal Committee of Multan was one of those six municipalities for which the Controlling Authority was the Government. That the Provincial Government desired that no Municipal Committee was to have a Secretary, but each of them was to have a Chief Officer, would appear to follow from the contents of memorandum No. SOH (L) 1‑II/60 dated the 19th July 191;0, which has been mentioned in the preceding paragraph, but as administrative instructions cannot change the law, it is clear that the instruction can have no binding force. One should not forget that the Municipal Administration Ordinance, 1960, was promulgated by the 1 resident of Pakistan and under the law only he could amend any of the provisions of the Ordinance, but one finds that with regard to the post of Secretary in a Municipal Committee the provisions of the Ordinance have been changed by a Secretary to the Provincial Government. It cannot be doubted, therefore, that the instructions contained in communications which Issued from the Provincial Secretariat could not adversely affect the rights of any person, if those rights were conferred or preserved by the Ordinance.

7. It is clear that section 130 of the Municipal Administration Ordinance, 1960, has been considered by the Provincial Government to be applicable to the case of the petitioner on the assumption that the post of a Secretary in a Municipal Committee had been abolished or at least its designation had been changed by the provisions of the Ordinance and Mr. Abid Hassan Minto, Advocate, who appeared for the Provincial Government and the Commissioner, Multan Division, invoked section 130 of the Ordinance by saying that section 29 of the Ordinance had directed that the designation of the post of "Secretary" had been changed to "Chief Officer". I have shown already that this assumption was Incorrect. It follows, therefore, that reliance on the provisions of section 130 of the Municipal Administration Ordinance, 1960, was misplaced. As section 130 of the Municipal Administration Ordinance, 1960, was not attracted to the case but its 4th section was, the petitioner continued to be the Secretary of the Municipal Committee, Multan, even when the Ordinance came into force. It may be that the petitioner could be transferred from Multan under the conditions of his service, but as he was transferred to Burewala under the mistaken belief that section 130 of the Ordinance was applicable to his case, the order of transfer cannot be deemed to be valid in law. The order of removal of the petitioner from service was passed because he did not obey the order of transfer, and as I have held that the order of transfer was not binding, it follows that the order of termination of service, which was passed on account of failure to obey the order of transfer, cannot but be held to be Invalid.

8. Learned counsel for respondents Nos. 1 and 2 contended that even if the order removing the petitioner from service was invalid, no writ can issue and in support of this contention relied upon Pakistan and the Administrator of Karachi v. Naseem Ahmad (P L D 1961 S C 455). The decision relied upon lays down that a public servant in the employ of the State cannot be granted a writ which would compel Government to reinstate him, and it is made clear that the reason is that a servant of the State holds office during the pleasure of his employer. However, the very decision says that the principle above‑mentioned has no application to servants of other corporate bodies, such as a Municipal Corporation. It was also urged by learned counsel for respondents Nos. 1 and 2 that as the services of the petitioner can be terminated at any time by giving him notice for one month, no writ should issue. The consideration has no relevancy in this case, because the petitioner was removed from service on a ground which is not tenable in law. Consequently, I would grant the petitioner a writ, directing respondents Nos. 1 and 2 to treat him in service, and would direct that respondents Nos. 1 and 2 shall pay his costs to him and he will pay the costs of respondent No. 3, the petition in so far as it relates to him being dismissed. NAZEER AHMAD MAHMOOD, J.‑I agree. A. H. Writ granted.