1985 PLP (C (PLC(CS))

(7) Writ Petition No. 2473‑S/1975, Meraj Din v. Managing Director and another.

2. All the petitioners were in fact serving the Road Transport Board in various capacities when they were made to retire under the order of Managing Director on 8th May, 1975. The order did not state so. but it appears that it was passed under sub‑rule (7) of rule 7 of the Punjab Road Transport Board Rules, 1972 which came to be introduced in December, 1974 and which reads as follows :‑ "Notwithstanding anything contained in this rule or in other pro visions of these rules, the appropriate authority may retire an officer of the Board from such date as it may determine ; provided that an officer who is retired shall be paid gratuity, provident fund and all other dues as may be admissible to him under Rules." Explanation (1) In this sub‑rule `appropriate authority' means the authority by which the officer concerned was appointed or a person duly authorised by such authority in that behalf. (2)`Officer' means an employee of the Board holding a post carrying an initial pay of Rs. 400 per mensum or more.

3. In Writ Petition No. 1001‑S of 1975, the petitioner joined the service of the Road Transport Board as a Senior Clerk and in course of time was promoted on regular basis as Traffic Manager in 1969 by the Chairman. According to the petitioner this post of Deputy Traffic Manager came to be re‑designated as that of Traffic Manager. While he was holding this post, to which he had been appointed by the Chairman of the Road Transport Corporation, he was retired by the Managing Director. He challenged the order of his retirement on ground that he could not be retired by the Managing Director at all. In the parawise comments which were filed by the Road Transport Board in this petition it was for the first time mentioned that the retirement from service had been ordered in exercise of the powers conferred by the newly‑added sub‑rule (7) of rule 7 of the Punjab Road Transport Rules, 1972. As regards the other two legal objections the Road Transport Board in its comments stated as follows :‑ He was promoted as Deputy Traffic Manager by Mr. S. D. Qureshi, the then Chairman, West Pakistan Road Transport Corporation by an order, dated 24th April, 1969 (Annexure 'G' to the Writ Petition). The post of Deputy Traffic Manager has since been designated as Traffic Manager and the petitioner was working as Traffic Manager when he was retired from service. The power of appointment, etc., exercised by the then Chairman, West Pakistan Road Transport Board are now exercised by the Managing Director, the respondent No.

1. Minister Incharge the Transport Department is Ex -Officio Chairman of the Punjab Transport Board. Under the rules, he does not have powers of appointment, etc., of any officer and servant of the Board. All such powers now vest in and are exercised by the Managing Director. That being so, the Managing Director, the respondent No. 1 is the appropriate authority within the meaning of sub‑rule (7) of rule 7 of of the Punjab Road Transport Board Rules, 1972."

4. In Writ Petition No. 1002‑S of 1975 the petitioner was originally appointed as Booking Clerk in the Transport Service Lyallpur, which was run by the Government. He claims to be still enjoying the position of a Government servant in spite of the promotions and improvements earned by him in the Road Transport Board. He was retired from the post of Senior Traffic Officer by the Managing Director and his promotion to that post was ordered by the Managing Director himself on 2nd February, 1973. However, on the strength of decisions of the Supreme Court in Fayyaz Ali Khan's case (1971 S C M R 454) and another decision (Civil Appeal No. 183 of 1969), a copy of which has been placed on the record of the Writ Petition No. 1001‑S of 1975, the petitioner states that in the matter of termination of his employment, the Managing Director was not the appropriate authority. In the report submitted by the Managing Director with regard to his competency in the matter, it has been stated in so far as the petitioner was appointed by the Managing Director to the post from which he has been retired. M. D. is the appropriate authority within the meaning of sub‑rule (7) of rule 7 of the P. R. T. B. Rules, 1972 and as such fully competent to retire the petitioner." As regards his status as a Government servant it was stated "the petitioner was appointed as a Booking Clerk by the D. M. before the formation of the P. R. T. .B. After establishment of the P. R. T. B. in the year 1952 his services were transferred to the Board and thereafter he has been working with the Board in different capacities. On promotions in the Board under orders of‑ the authorities of the Board and has received all the benefits and pri vileges admissible, to the employees of the Board." It was further stated that he had given an undertaking agreement whereby he undertook to be bound by the rules of the. Board with respect to his service conditions. No copy of such an undertaking has been filed and the petitioner denies having given any undertaking and on the other hand filed a rejoinder saying that the agreement submitted by him was not found in order and the petitioner was so informed.

5. In Writ Petition No. 1010‑S of 1975, the petitioner claims to have joined the service of the Board in 1967. He was appointed Assistant Traffic Manager, from which post he has been retired, by the Chairman of the Road Transport Corporation and has been now retired by the Managing Director. In the report submitted by the Board the objection with regard to the appropriate authority has been met by stating as follows :‑ "It is correct that Mr. Azhar Khan petitioner was not appointed by the present Managing Director. He was appointed as A. T. M. by the then Chairman of W. P. R. T. C. It may be pertinent to submit that at the relevant time there was no office of the Managing Director. All the powers which are delegated to or vest in or are exercised by the present Managing Director P. R. T. B. were delegated to, vested in and were exercised by the then Chairman of the W. P. R. T. B. In fact the office of the then Chairman is now designated as Managing Director. The present Chairman is the Minister Incharge of the Transport Department Government of the Punjab, who is ex‑officio the Chairman of the P. R. T. B. Under the P. R. T. B. Rules, 1972, he does not have nor can he exercise any of those powers which vested in and were exercised by the then Chairman of the W. P. R. T. C. That being so present Managing Director of P. R. T. B. is the appropriate authority within the meaning of rule 7(7) of the P. R. T. B. Rules, 1972 and the orders passed in exercise of the powers under the said provisions are lawful and competent."

6. In Writ Petition No. 1011/S‑75, Laiq Ahmad Khan claims appointment in the Government Transport Board as Junior Clerk on 1st January, 1948. He received promotions and improvements in his position and was holding the post of Accounts Officer when he was retired by the Managing Director. The order of his appointment to this post was passed by the Chairman W. P. R. T. B. It may be mentioned here that earlier this petitioner bad been given a notice by the Managing Director for taking action under section 3 of the Road Transport Corporation (West Pakistan) Removal of Undesirable Employees Ordinance, 1965, whereupon he had filed Writ Petition No. 23‑S of 1973 and the reliance by him in that petition was on the decision in Fayyaz Ali Khan's case. Subsequently this notice was recalled by the Road Transport Board and another order was passed on 1st February, 1973 which was as follows :‑ "Since you have claimed to be Government servant and filed a writ ‑petition in respect of this claim, your services are placed at the dis posal of the Government of the Punjab, Services, General Adminis tration and Information Department with effect from 1st February, 1973. You are advised to report to the Services, General Adminis tration and Information Department for further orders." This petitioner reported to the Government in the S & G A D and he was informed by the Government that "you are advised to route your joining report etc., through the Road Transport Board with relevant instructions in this regard." He again came to the Road Transport Board on 22nd July, 1973. The Board thereafter created a post for him and other similarly affected for the period from 1st February, 1973 to 31st March, 1973 and made the payments to him. That Petition (23‑S/73) filed by Laiq Ahmad Khan is still pending in this Court, having been admitted earlier. In the comments offered reference is to the same comments which have been on the relevant point reproduced earlier dealing with the facts of Writ Petition No. 1001‑S/75. 7. 1n Writ Petition No. 1012/S‑75, the claim by the petitioner is that he joined the Transport Service in 1952 as a Government Servant and that he had been serving the Board in various capacities when he was made to retire by the Managing Director from the post of Assistant Traffic Manager to which post admittedly he had been promoted by the Managing Director himself on 14th October, 1974. He has claimed the protection as a Government Servant and in reply the Board has stated that order of retirement is not open to exception simply on the ground that the petitioner was initially appointed in the G. T. S. Rawalpindi, which was run by the then Government of the Punjab. It is the appointment to the post held last and from which the petitioner was retired, which is relevant for the purpose of determining the appropriate authority within the meaning of provisions of sub‑rule (7) of rule 7 of the P. R. T. B. Rules, 1972.

8. In Writ Petition No. 2742‑S of 1975, the petitioner claims to be a Government servant continuously serving the Transport Service and having last gained promotion as Traffic Manager on 5th March, 1975 from which post he was retired. The order is sought to be defended on the ground that appointment to the post from which he was retired having been made by the Managing Director himself he was competent to pass such an order and his previous entry in service under the Government was of no consequence.

9. Finally, in Writ Petition No. 2743‑S of 1975 filed by Mehraj Din, the petitioner claims his initial appointment in the Government which has continued and his last promotion was ordered on 17th July, 1969 by the Chairman as Assistant Traffic Manager from which post he stands retired under the orders of the Managing Director. He is seeking duel protection one as, a Government servant and the other of having not been dealt with by the appropriate authority i.e. the authority which appoin ted him.

10. I propose to deal first with the cases of those petitioners who entered the Road Transport Service while it was directly run by the Government and they were at the time of entry treated for all purposes as Civil Servants employed in connection with the affairs of the Province. The Road Transport Board as an entity distinct from the Provincial Government came to be set up on 16th April, 1952 and the Road Trans port Board Rules came to be enforced on the 26th May, 1952. There was transfer en bloc of employees of the Transport Service run by the Govern ment for service in the newly set up Board and a provision for it was made by amending section 43‑A of the Motor Vehicles Act, 1939. That provision and its effect on such civil servants as were transferred for service under the Board came to be examined first in Rana Muhammad Jamil v. Punjab Road Transport Board, Lahore (P L D 1957 (W. P.) Lah. 1). It was held then that on the strength of the provisions of section 43‑A the employees of the Transport Board were, after the transfer of their service to the Board, to be deemed to be servants of the Board. This law was followed in Irshad Muhammad Mirza v. Road Transport Corporation, West Pakistan (P L D 1966 (W. P.) Lah. 632). The matter came to be considered by the Supreme Court in the case of Fayyaz Ali Khan v. Government of West Pakistan (1971 S C M R 454). The case of Mr. Fayyaz Ali before the Supreme Court was that although his service stood transferred to the Board no change in his status as a Government Servant thereby took place and he continued to be a civil servant enjoying all the legal protections available to a civil servant. The decision in Rana Muhammad Jamil's case came to be considered by the Supreme Court and it was held while referring to amendment of section 43‑A made the basis for decision in Rana Muhammad Jamil's case that "this amendment, therefore, cannot be said to have changed the status of the appellant from Government servant to that of an employee of the Punjab Road Transport Board. There have been several organizational changes brought about by various legislations but none of them has provided that a person who was employed by the Government in the Provincial Transport Service was to be considered as an employee of Road Transport Board or Road Transport Corporation. It was held by the Supreme Court that such a Government servant while serving the Road Transport Board or the Road Transport Corporation continued to be a civil servant, the law having not changed his position in that respect.

11. Mr. Zia Mahmood Mirza has, in the alternative, contended that if the petitioners claim the statuts of Government servants and on that account plead incompetency of the Managing . Director in the matter of retirement they should, in view of the Punjab Administrative Tribunal Acts, 1974 take their grievance, if any, to the Administrative Tribunal and in view of Article 212 of the Constitution and the establishment of Administrative Tribunal recourse cannot be had by them to Article 199 of the Constitution. It has also been pleaded that the Managing Director being the Chief Executive of the Corporation could in any case terminate their deputation if at all their employment with the Board is considered to be as on deputation and the order of retirement should be construed accordingly.

12. So far as the first argument in the alternative is concerned recourse to the Administrative Tribunal can be had by a civil servant under section 4 of the Act only against an order made by a Departmental Authority and the order must be in respect of the terms and conditions of his service. The departmental authority has been defined in the explanation contained in the same section in the following words "in this section departmental authority means any authority other than Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants." Once the position is conceded that some of the petitioners are civil servants the jurisdiction of the Managing Director to determine their terms and conditions of service disappears and he is not a departmental authority for the purpose of section

4. As civil servant a person can be dealt with by the Governor or his delegate in case he has been appointed on a post in connection with the affairs of the province and by the President or his delegate in case he has been appointed on post in connection with the affairs of the Federation. Any authority which does not conform to this description will not be a departmental authority. The Managing Director can certainly, while they are serving in the Board, determine their term and condition for the purpose of and in so far as they are rendering service to the Board. But he has not been delegated any power by the Governor to deal with them as civil servants as such. The Managing Director does not qualify as a departmental authority. No relief being available against his order under Administrative Tribunals Act the bar of Article 212 will not be attracted to these proceedings under Article 199.

13. As regards the second argument it is true that the Managing Director himself had promoted these petitioners to the post from which they were retired. All the same the power to retire from service which was made available by the new rule could not be exercised by the Managing Director for the purposes of bringing to an end the employment of a civil servant. The order under examination cannot be given different content and colour than what it has. It is an order of retire ment with payment of gratuity, etc. Therefore, such an order cannot be treated as an order bringing to an end the deputation of a civil servant who has his roots elsewhere. Besides, it is open to question whether the Managing Director can so unilaterally return these civil servants to the Provincial Government. His predecessor's effort to bring to an end the deputation of Laiq Ahmad Khan would bear it out that in this matter he could not so act.

14. The argument that because the last promotion was ordered by the Managing Director, so he could undo it by invoking sub‑rule (7) of rule 7 is also untenable because that would at best authorise him to restore that incumbent to the post earlier held by him provided no other rule or law was violated. By promoting a person the Managing Director could not acquire the right to retire him under this rule.

15. In view of what has been stated it clearly follows that those of the petitioners who entered service initially in the Government and retained the character as civil servants, the Managing Director could not invoke the power to retire them under sub‑rule (7) of rule

7. Therefore, the claim made by Mian Aminuddin (Writ Petition No. 1002‑S/75), Laiq Ahmad Khan (Writ Petition No. 1012‑S/75). Syed Abid Hussain Bokhari (Writ Petition No. 1012‑S/75), Malik Faiz Muhammad Awan (Writ Petition No. 2742‑S/75) and Mirajuddin (Writ Petition No. 2743‑S/75) is allowed with costs and the order of the Managing Director retiring them is declared to be without lawful authority and of no legal effect.

16. Next are the cases of the two petitioners who were appointed on the posts from which they were retired by the Managing Director by an authority different from that of the Managing Director. In this category fall Khalid Hussain Qureshi (Writ Petition No. 1001‑S/75) who was appointed Deputy Traffic Manager by the Chairman of the Road Transport Corporation. The post was redesignated and he was retired from the redesignated post by the Managing Director. Next is Mr. Azhar Khan (Writ Petition No. 1010‑S/75) who was appointed on the post of Assistant Traffic Manager and has been retired by the Managing Director. The definition of appropriate authority for the purpose of sub‑rule (7) of rule 7 has been provided in the explanation appended to the sub‑rule itself and it has already, been reproduced. It means the authority by which the officer concerned was appointed or a person duly authorised by such authority in that behalf. The entire scheme of section 70 of the Motor Vehicle Ordinance, 1965 was examined by the learned counsel for the Board with a view to demonstrate that it was the Road Transport Corpora tion which was the employer in all cases and that it had delegated its powers of making appointments and of taking disciplinary action against the employees to various officers including the Chairman of the Corporation. It is further contended that after the replacement of the Road Transport Corporation by the Punjab Road Transport Board, the Board. has delegated all such powers to the Managing Director and otherwise also under the scheme of the Act the Managing Director has succeeded to the powers and authority of the erstwhile Chairman. By defining appropriate authority as the authority which appointed, a fixity has been lent to the concept of appropriate authority. It has to be determined as a fact in each case as to who was the authority which appointed the officer concerned. 1n the two cases under examination the Chairman of the erstwhile corporation made the appointment. Therefore, in him vested the power to retire. The learned counsel for the Board has attempted to argue that as the present Chairman of the Board has not succeeded to the powers of the erstwhile Chairman of the Corporation, but the Managing Director as the Chief Executive has succeeded, the mantle of appropriate authority should also devolve on him. Such a line of succession does not follow from the definition of appropriate authority. Delegation of powers, wherever permissible, can take place by name, by reference to powers exercised by reference to the post held or by reference to combination of these. Where delegation of powers is by designation, as was the case of Chairman of Corporation, it devolved on the designated authority irrespective of the other powers possessed by such authority. If the designated authority is itself not in existence the delegation comes to an end.

17. Next, it has been urged that the expression "in that behalf in the definition of appropriate authority has reference to powers of appoint ment and did not to power of retirement. This view does not seem to be correct because the power defined is concerning an officer, who was appointed and the appointment having already taken place the power or appointment of such Officer stood exhausted by the appointment having been made. The reference being more particular, the expression "in that behalf"‑here means the power to retire. Admittedly the Managing Director was never delegated this power to order retirement under sub‑rule (7) of rule 7 by the authority which made the appointment in fact, the Chair man, or in law, the Corporation or Board.

18. I find that in the case of these two officers also the Managing Director did not satisfy the requirement of being the appropriate authority and the order passed by him is without lawful authority and of no legal effect. These two petitions are also allowed with costs. A.A. Writ issued.