1988 PLP (C (PLC(CS))

MUHAMMAD MAZHAR ALI, J.‑‑The facts forming background of this Constitutional petition filed by Wali Ahmed Khan, the petitioner, as stated in the petition, are these. The petitioner was an employee of the defunct Karachi Water Board. He served the said Board until the same was merged with the K.D.A. pursuant to the K.D.A. Order V of 1957. The petitioner thus, became an employee of the K.D.A. by operation of law. The petitioner for certain alleged animosity was denied his service rights and entitlement and consequently he had to file a suit in the Court of Civil Judge, Karachi for declaration of his service status etc. During the pendency of the suit he was charge sheeted on 5‑1‑1977 for certain matters and also making unlawful use of the Office documents of the K. D. A. It led the petitioner to file Constitutional Petition No.177 of 1977 in this Court to challenge, inter alia, the charge‑sheet and proceedings undertaken thereunder. This Court vide its order dated 27‑5‑1977 directed that no final action on the charge‑sheet shall be taken. The respondent No.l (K. D. A.), however, with a view to circumvent the order passed by the High Court served the petitioner with a fresh charge‑sheet dated 20‑6‑1979 which was more or less on the similar lines with the earlier one. The petitioner thereupon presented an application in this Court for restraining the K.D.A. from proceeding with the fresh charge‑sheet as it waggala fide device to circumvent the said order passed earlier by this Court in respect of first charge‑sheet and a notice of this application was ordered to be given to respondent No.1 but before it would be heard and disposed of finally, the respondent No.l dismissed the petitioner vide their order dated 25‑8‑1980 on the basis of the abovesaid fresh charge‑sheet. The petitioner thereupon amended his petition so as to question his dismissal. Eventually this Court vide its order dated 1‑6‑1981 held that second charge‑sheet pursuant to which the petitioner was dismissed from service :vas initiated by mala fides. This judgment has since been reported in 1982 P L C 1 (Service Case). In this case it was further held that the first charge‑sheet dated 5‑1‑1977 was within jurisdiction. 2. aggrieved by the aforesaid judgment of this Court both the petitioner as well as respondent No.1 filed appeals in the Supreme Court which are still pending. In the meanwhile, however, on Z9‑3‑1982 the suit filed by the petitioner in the Civil Court was decreed and the petitioner was declared to be entitled to his due promotion by virtue of the Recruitment Rules in force. The respondent No.l did not file appeal against the said judgment and decree of the Civil Court and hence it has become final.

3. It is further averred that the respondent No.l in its Memorandum dated 30‑10‑1977 to its Member Finance conceded that the petitioner was a Grade‑18 Officer of the K.D.A. ranking at Serial No.l in the Seniority List of the Officers of Grade‑

18. A photocopy of the Memorandum has been filed as Annexure 'A' to the petition. Besides, the Minister to the Government of Sind, Local Government Department vide his order dated 27‑7‑1976 (Annexure '13' to the petition) had directed that the petitioner be promoted with immediate effect as Secretary in the K.D.A, and may be given all the financial benefits which have already been agreed by the K.D.A.

4. By virtue of the Sind Local Government (Amendment) Ordinance 1983 Chapter NVI added in the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) the provisions for the establishment and constitution of Karachi Water and Sewerage Board are embodied. This Chapter contains sections 121 to 148 with Appendix 'A' and Appendix 'B'. Notwithstanding the Pendency of the appeals before the Supreme Court, the respondent No.l notified a list of the employees of the K.D.A. who were to be transferred from the service of the K.D.A. to the service of Karachi Water and Sewerage Board. In the said list at P.30 (Annexure 'C' to the petition) at Sr.No.2 the post of Circle Office Superintendent is shown. Under the column "Name of Incumbent" it was shown vacant but in the next column of "Remarks" it was stated as follows:‑ "Mr. Wali Ahmed Khan was dismissed from this post but his appeal is pending in Supreme Court."

5. The petitioner thereupon approached the Supreme Court complaining that despite his dismissal order having been quashed by the High Court, he was shown in the said list as having been dismissed. The learned counsel for the K.D.A. appearing in the Supreme Court acknowledged the mistake and undertook to instruct the respondent No.l to suitably rectify the same. The said list (Annexure 'C' to the petition) was amended by respondent No.2 on 25‑3‑1985 so as to insert the name of the petitioner in column No.3 which was previously shown as 'vacant'. In the 'Remarks' column the following was added through a Corrigendum (Annexure 'D' to the petition):‑ "Mr. Wali Ahmed Khan was removed from service on 25‑9‑1980. Removal order, however, was quashed by the High Court on 1‑6‑1981, against which K.D.A. has gone in appeal and the same is now pending before the Supreme Court." Alongwith the petition the petitioner has also filed an application under Order 39 Rr.I and 2 read with Section 151, C.P.C. etc. praying for an interim order, pending the disposal of the main petition, restraining the respondents and their servants etc. from enforcing or giving any effect to the order impugned whereby the petitioner has been transferred to Karachi Water Sewerage Board as a Circle Office Superintendent. The application is duly supported by the petitioner's affidavit.

6. The entries made by the petitioner revealed that the transfer of the employees from K. D. A. to Karachi Water and Sewerage Board was effected persuant to a letter dated 1‑2‑1983 written by the Director General K.D.A. to the Chairman, Karachi Water and Sewerage Board (Annexure 'E' to the petition). The transfer of the petitioner to Karachi Water and Sewerage Board is, according to the petitioner, illegal and mala fide, without jurisdiction and without lawful authority. The petitioner has therefore, prayed for the following reliefs:‑ (i) This Hon'ble Court may be pleased to declare that the petitioner is an officer of the K. D. A. of grade not less than Grade‑18 and that the order of the K. D. A. transferring the petitioner to the Karachi Water and Sewerage Board is ultra vires and illegal as well as mala fide. (ii) The petitioner further prays for an order directing the respondents, their servants, agents and assigns and all those claiming through or under them to forbear from treating the petitioner as an officer of a grade less than 18."

7. The respondent No.l has contested the petition and in support of their case two counter‑affidavits of Syed Muhammad Askari Assistant Secretary (Establishment) with the respondent No.1 dated 1‑6‑1985 and the affidavit filed alongwith injunction, application and another dated 2‑8‑1985 in respect of the main petition have been filed.

8. The application for temporary injunction filed by the petitioner (C. M. A. 638 of 1985) was ordered to be heard alongwith main petition vide order dated 2‑6‑1985. It is averred on behalf of respondent No.l that the petition involves disputed questions of fact inasmuch as the facts as disclosed in the petition are not supported by the record of the respondent. The disputed facts, it is further stated, cannot be solved unless evidence is recorded and the petitioner is. cross‑examined. Hence, the petition is misconceived and is not maintainable in law. If the transfer of the petitioner to Karachi Water and Sewerage Board (for short hereinafter referred to as K.W.S.B.) was claimed to have been properly made inasmuch as in pursuance of the Sind Local Government (Amendment) Ordinance, 1983 and the Sind Government Notification No.SOI(KDA)14‑87/88 dated 27‑1‑1983 the whole bulk water supply system stood transferred to K.W.S.B., w.e.f. 1‑2‑1983. Since the petitioner was on the roll of the Bulk Water Supply System at the time of issuance of the said Ordinance and Notification, hence the petitioner alongwith other staff was rightly transferred to K.W.S.B., as Circle Office Superintendent in Grade‑

11. With regard to the Memorandum dated 30‑10‑1977 (Annexure 'A' to the petition) it is stated that no such Memorandum had ever been issued by any competent authority of respondent No.l. The Administrative Officer (Engineering) of respondent No.l was not competent to send any paper direct to Member (Finance) of respondent No.l. It does not contain any Diary or Despatch Number and there is nothing on record of respondent No.l that any such noting had been sent as alleged by the petitioner. This document was denied as being forged and fabricated document. It is further denied that respondent No.l had never conceded anywhere that the petitioner was Grade‑18 Officer ranking at Serial No.l of the Seniority List of the Officers of Grade‑18 as alleged. Annexure 'B' to the petition has also been claimed to be a manufactured document as its existence is not within the knowledge of respondent No.l nor there is anything on record of the respondent that any such directions were ever received by them. It is further pleaded that even otherwise the petitioner being an employee of respondent No.l was governed by K. D. A. (Employees Service) Regulation, 1973 as amended from time to time. According to the normal procedure and prescribed method the case of promotion of Grade‑18 Officer was in the first instance required to be placed before the Senior Staff Gazetted Selection Committee and thereafter before the Governing Body of respondent No.l. After the approval of the Governing Body the matter was to be referred to the Government for approval. No such procedure was adopted in the case of the petitioner. The genuineness of the docu ment was thus, questioned and the petitioner was put to strict proof thereof. It is averred that the Minister concerned even otherwise was not competent to issue any such direction in violation to the existing Rules/ Regulations. The application of Article 4(3) of the K. D. A. Order was denied. It is again reiterated that the petitioner was working as Circle Office Superintendent (in BPS‑11 Non‑Gazetted) and at no stage he was considered or given gazetted status of Grade‑18 in supersession of large number of his seniors. Consequent to his transfer to the K.W.S.B. in the manner stated above, the petitioner was said to be no more servant of respondent No.l. The transfer of the petitioner was not consequent to a decision of the D . G. of respondent No.l but it was a decision of the Government of Sind who had not been impleaded as a party to the petition. In the absence of the Government of Sind and K.W.S.B. as a party to the petition, no proper relief can legally be granted to the petitioner. The petition was thus, said to be bad for non‑joinder of necessary parties and was liable to be dismissed on that score alone.

9. The petitioner filed his affidavit‑in‑rejoinder raising certain legal pleas such as the deponent of the counter‑affidavits is not an Authorised Officer for filing the same as provided under the Administrative instruction No.143 of March 1973 and that he was even 'otherwise not in a position to file sworn statements of facts of the case as the relevant record was in the possession of the Assistant Law officer as per office Memorandum dated 15‑11‑1977 (Annexure 'F' to the rejoinder). He deposed that the facts stated by him in his petition are based on record of respondent No.l which have been duly supplied to him by the respondent No.l itself in the normal course of business duly authenticated with official seal of respondent No.l. Alongwith his affidavit‑in‑rejoinder the petitioner has filed certain documents to wit. (Annexures G, H, I, J & K) in support of his plea that the documents filed alongwith the petition were genuine and were given to him in the normal course. These were produced in Suit No.470/66 in the Court of Senior Civil Judge/A.S.J. III, Karachi and Civil Revision No.8 of 1983. He reiterated that his transfer to K.W.S.B. w.e.f. 1‑2‑1983 as an official of Grade 11 is baseless and false. The K.W. S. B vide its letter dated 21‑8‑1985 (Annexure 'L' to the Rejoinder) has made it clear that his name has been struck off from the roll of Bulk Water Supply Circle since June 1973 and that no payment had been made to him thereafter by that circle. In this letter a reference has further been made to the order of Government of Sind dated 27‑7‑1976 (Annexure 'B' to the petition). The respondent No.l has also made a reference to the said letter in their letter dated 15‑7‑1968 (Annexure 'M' to the rejoinder). He reiterated that the Annexure 'B' to the petition was a genuine document which existed on the record of respondent No.l and that this document was neither disputed nor disowned by respondent No.l at any stage during the pendency of Civil Revision No.9 of 1983. He has deposed that his case for promotion and payment of dues was considered and decided in his favour by the Chairman including the Chairman of the Governing Body of respondent No.l on the basis of advice tendered by the Law Department as well as recommendations made by the Gazetted Staff Selection Committee of the respondent No.l. The provisions of Article 5 read with Chapter 9 of the K. D. A. Order, 1957 have been duly complied with and no clearance for the second time was required. He has reiterated that he continues to be in the service of respondent No.l as its Secretary (presently a post of Grade‑19) w.e.f. 27‑7‑1976. No affidavit on behalf of respondent No.l, It is pertinent to note, has been filed denying the genuineness of the documents Annexures 'F' to 'Y'.

10. The Administrative Officer, (Engineering II), Karachi Develop ment Authority has not contested the petition.

11. Mr. Muhammad Ali Saeed, the learned counsel for the petitioner made the following submissions:‑ (i) The transfer of the staff including the petitioner from K.D.A. to K.W.S.B. w.e.f. 1st February 1983 by the Director General of respondent No.l vide his letter dated 1‑2‑1983 (Annexure 'E' to the petition) is illegal. Such an order can be passed only by the Sind Government as is laid down in section 139 of the Sind Local Government Ordinance, 1979 as amended by Sind Ordinance 11 of 1983. (ii) That the petitioner even otherwise was not connected with Bulk Water Supply and hence he could not be transferred to the K.W.S.B. This fact is clearly borne out from the Office Memorandum dated 13‑10‑1985 issued by the Assistant Administrative Officer (General) (Annexure 2 to the affidavit- in‑rejoinder dated 8‑9‑1986). (iii) That Article 4 of K.D.A'. Order, 1957 empowers the Governing Body to exercise all powers, do all acts and things which may be exercised or done by the Authority and hence the decision of transferring the employees of the K.D.A. to the K.W.S.B. could, at the best, be taken by the Governing Body and fn no case powers vest in the Director‑General of respondent No.l to pass such order. (iv) That the order of transferring the petitioner to K.W.S.B. as a Circle Office Superintendent is even otherwise wholly unlawful besides being mala fide for the following reasons:‑ (a) That the petitioner is Grade‑19 Officer whereas the post of the Circle Office Superintendent falls in Grade‑11 only. (b) That notwithstanding the quashment of the order of dismissal of the petitioner it was noted in the List of Staff to be transferred to K. W. S. B. in the 'Remarks' column that the petitioner was dismissed from the post but his appeal is pending in the Supreme Court. (c) That this remark was later on amended when the petitioner moved the Supreme Court in that behalf. (v) That vide order of Mr. Jam Sadiq Ali, the then Minister to the Government of Sind, Local Government Department dated 27‑7‑1976 (Annexure 'B' to the petition), the petitioner was promoted as Secretary in the K.D.A. (respondent No.l). (vi) That the case of the petitioner was duly placed before and recommended by the Selection Committee as is borne out from the note of the Acting Director‑General of respondent No.l dated 14‑11‑1973 (Annexure 'X' filed with the Rejoinder Affidavit dated 30‑9‑1985) submitted to the Member (Technical). (vii) That the orders of the Minister, Sind Local Government Department were to be strictly followed and given precedence over the decisions of the Governing Body of respondent No.l as is explained in the Office Memorandum dated 13‑10‑1975 issued by the Secretary of respondent No.l (Annexure 'Y' to the Affidavit‑in‑rejoinder). (viii) That the case of the petitioner's promotion as pleaded in the petition is fully proved by the notes of the Officer on Special Duty of respondent No.l submitted to Member (F)/Director- General dated 24‑11‑1977 (Annexure P‑4 to the Affidavit‑in -Rejoinder dated 8‑9‑1986).

12. Mr. Sabir Hussain Kizilbash, the learned counsel for the respondent No.l contested the petition on both counts. He emphasised that the disputed documents were produced on 6‑2‑1986 for the first time through an application made under Order 13, Rule 2 whereas the petition was filed on 24‑4‑1985. He urged that a suit is pending before a Civil Court of competent jurisdiction for the reliefs sought for in this petition. In this submission, the documents filed alongwith the above application cannot be accepted and no relief can be granted on the basis thereof unless they are duly proved to be genuine documents. Drawing our attention to section 147 of the Sind Government Local Government Ordinance, 1979 as amended vide Sind Ordinance 11 of 1983 be contended that Chapter 7 of the Karachi Development Order, 1957 and the Karachi Water Management Board Ordinance, 1981 have been repealed. The Government of Sind has issued notification dated 27‑1‑1983 transferring the whole Bulk Water Supply System to K.W.S.B. w.e.f. 1‑2‑1983 lock stock, and barrel. Since the petitioner was on roll in the Bulk Water Supply Scheme i.e. Water Wing of the Engineering Department of respondent No.1 at the time of issuance of the Sind Local ‑Government Ordinance, 1983 and the aforesaid Notification, he was also transferred to K.W.S.B. He is thus, no more the servant of respondent No.l. The petition, therefore, on this score, in his submission, is unsustainable. Making his submission regarding the case of the petitioner for having been selected and appointed as Secretary in Grade‑18, Mr. Kizilbash submitted that necessary steps as required under the Karachi Development Authority (Employees' Service) Regulations, 1973 have not been complied with. In his submission firstly, the documents filed by the petitioner in support of his plea are forged and fictitious documents inasmuch as no such record exists with the respondent No.l. The post of the Secretary, he so contended, carries the pay scale of Rs.850 to Rs.1,650 plus Special Pay of Rs.275 per month. For appointment on 'this post a regular procedure was prescribed and unless one was selected by the concerned Board, he could not be appointed on this pay scale. The order of the Minister relied upon by the petitioner is even otherwise of no legal consequence. The learned counsel, therefore, vehemently pressed for the dismissal of the petition. Exercising his right of reply, Mr. Muhammad Ali Sayeed, the learned counsel for the petitioner submitted that Government of Sind was not a necessary party and the petitioner would not fail for failure to implead the Government of Sind as a party. He again urged that the Director‑General of respondent No.l vide his order dated 1‑2‑1983 addressed to the Chairman K.W.S.B. (Annexure 'E' to the petition) has appended a list of the staff proposed to be transferred with the system, and, later on, treated the same as an order to transfer the staff mentioned therein to K.W.S.B. He submitted that persuant to the order of the Minister dated 27‑10‑1977 he had got a statement prepared showing the differences and allowances admissible to the petitioner and the same was duly signed not only by the Director‑General of respondent No.l but also by the Member (Finance) and D.F.A. (Convener Member) on 29‑10‑1977 as is evident from Annexure P.2 to the application under Order 13, Rule 2, C. P. C. He also emphasised that the petitioner was not connected with the Bulk Water Supply as is evident from the Office Memorandum (Annexure P/9 to the petitioner's rejoinder dated 4‑9‑1986) and hence he could not be transferred for that reason as well. He further urged with vehemence that respondent No.l has filed no counter‑affidavit denying the existence or genuineness of the documents filed alongwith the affidavit‑in‑rejoiner till today.

16. Having heard the arguments of both the learned counsel for the parties and after perusal of the relevant undisputed documents on record we are satisfied that the grievance of the petitioner against the inclusion of his name at page 30 of List of Officers/ Officials purported to be transferred from K.D.A. to K.W.S.B. at the behest of the Director‑General of respondent No.l. w.e.f. 1st February, 1983 vide his Letter No.PS/DG/KDA/83/50 dated 1st February, 1983 (Annexure 'E' to the petition) is improper, illegal and without lawful authority. The plea of the respondent No.l to the effect that upon coming into force of the Sind Local Government (Amendment) Ordinance, 1983 persuant to the Government of Sind, Housing, Town Planning Local Government and Rural Development Department Notifi cation No.SOI (KDA) 14‑87/81 dated 27‑1‑1983, the Officers/ Officials working in the Bulk Water Supplies System with respondent No.l also stood transferred to the K.W.S.B. w.e.f. 1‑2‑1983 is wholly fallacious, apparently misconceived and absolutely untenable in law. If the Legislature would have so intended, then there was nothing in its way not to have so indicated specifically in the Sind Local Government (Amendment) Ordinance, 1983. But what has been specifically indicated by the Legislature in section 139(1) of the said Ordinance is as under:‑ 139(l) Employees of the Karachi Development Authority and Karachi Metropolitan Corporation serving in connection with the Water Supply and Sewerage Service and the Karachi Water Management Board, may be transferred to serve under the Board as Government may direct and on such terms and conditions as may be determined by Government: Provided that such terms and conditions shall not be less favourable than those admissible to such employees immediately before such transfer: Provided further that the employees so transferred shall, until the terms and conditions of service are determined under this Ordinance continue to be governed by the same terms and conditions as were admissible to them immediately before such transfer."

17. From a bare perusal of the above reproduced provision of law it is clearly established that the employees of the K. D. A. and K. M. C. serving in connection with Water Storage Service of the Karachi Water Management Board are liable to be transferred to serve under the Board if the Government so direct. The authority to transfer the said employees, is, therefore, vested in the Government and unless an order or a direction is given by the Government for transferring the employees in question, they shall not be deemed to have been transferred to the K.W.S.B. upon the coming into force of the said Ordinance. Despite our repeated demands and specific opportunity having been provided to Mr. Kizilbash: the learned counsel for respondent No.l, he could not draw our attention to any document containing the directions or orders of the Government regarding the transfer of the employees mentioned in Annexure 'A' to the petition.

18. In this view of the matter, we would hold that the petitioner has not been treated in accordance with the law which is an in‑allienable right of every citizen. We would, therefore, direct that the abovenoted order of the respondent No. l transferring the services of the petitioner from K. D. A. to K. W. S. B. is illegal, without lawful authority and ultra vires and hence of no legal effect.

19. Having allowed the petition in the manner and to the extent indicated above, we do not consider it necessary to deal with and finally adjudicate upon the contention of the petitioner that he had ceased to be on the roll of the Bulk Water Supply Circle since 21‑8‑1985 as per Annexure 'L' to the affidavit‑in‑rejoinder and hence he was even on this score not liable to be transferred to K.W.S.B.

20. Now we take up the other grievance of the petitioner to the effect that notwithstanding his promotion to Grade‑18 w.e.f. 27‑7‑1976 persuant to the directions of the Government of Sind vide Annexure 'B' to‑ the petition and subsequent confirmation thereof by the Member Finance, K. D. A. the petitioner has been declined his proper status. We are not inclined to grant this relief to the petitioner for more than one reason. Firstly the orders/ memorandums etc. on the basis were of the petitioner claims to be an Officer of not less than Grade‑1& of the K.D.A. were passed somewhere in the years 1977 and 1978 when the earlier Constitutional Petition No.177 of 1977 filed by the petitioner against the K.D.A. was pending in this Court yet no effort was made by him to suitably amend the said petition so as to seek an appropriate relief in respect of his status as Grade‑18 Officer From the various documents filed by the petitioner it is evidently borne out that the copies of all those documents on the basis whereof he claims to be an Officer of not less than Grade‑18 were available to him in 1977 or in 1978. The petitioner has thus, approached this Court through this petition filed on 24‑4‑1985 after about seven years of the passing of the orders in question. Secondly, in the earlier Petition No.177 of 1977 the judgment of which is reported in 1982 PLC (C.S.) 171 this Court had not granted the relief of the re‑instatement and the matter is now sub-judice before the Hon'ble Supreme Court. If the petitioner succeeds in obtaining the relief of re‑instatement from the Hon'ble Supreme Court and the respondent No.l does not give posting to the petitioner in the grade to which he is entitled, then he may have a fresh cause of action, but in the present petition the above relief cannot be granted.

21. In the result, the petition partially succeeds to the extent and in the manner as stated above. The parties are, however left to bear their own costs. The C.M.A.No.638 of 1985 has become redundant and hence it is dismissed hereby. S.Q. /W‑21/K Petition partly accepted