1969 PLP 46 (SCMR)

ABDUS SATTAR, J.‑This appeal by special leave is directed against a judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, whereby accepting a writ petition filed by respondent No. 1, Muhammad Ramzan, an order passed by the Government of West Pakistan setting aside his appointment as Garden Superintendent was declared to be without lawful authority and of no legal effect. Respondent No. 1 who was serving as sardarakhti under the Municipal Committee, Lyallpur, was appointed temporarily as Garden Superintendent on the 27th April 1959 and was confirmed by the Chairman on the 12th December 1963. The appellant who was at that time Head Mali, filed an appeal against the order of confirmation to the Commissioner. The appeal was dismissed. On being moved by him the Provincial Government set aside the order of appointment of Muhammad Ramzan and requested the Commissioner "to consider Ali Muhammad for promotion to the post of Garden Superintendent provided no fully qualified hand is available". Muhammad Ramzan challenged this order of the Provincial Government in a writ petition. The learned Judges of the High Court thought that by its order the Provincial Government had appointed Ali Muhammad as Garden Superintendent. As a matter of fact Ali Muhammad had not been appointed to the post. Government only set aside the order of appointment of Muhammad Ramzan and directed that Ali Muhammad be considered for promotion to the post of Garden Superintendent provided no fully qualified hand was available. Coming to the question, however, of the power of Government to pass the order in question the High Court took the view that such an order could be passed only in appellate or revisional jurisdiction and as under the relevant laws neither jurisdiction was not conferred on the Government the order was not relatable to the power of supervision and control over the Lyallpur Municipal Committee under section 110 of the Municipal Administration Ordinance (hereinafter called the Ordinance). Leave to appeal was granted to consider whether the order of the Provincial Government could be passed under section 110 of the Ordinance in its capacity as the Controlling Authority According to section 3 (10) of the Ordinance Controlling Authority means in the case of such Municipalities or class of Municipalities as the Government may from time to time by notification in the official Gazette specify in this behalf, the Government and in all other cases the Commissioner. Under section 3 (19) of the Ordnance, Government means in the case of the Federal Capital the Central Government and in other cases the Provincial Government. By notification No. SOH (L)/1‑15/60, the Municipal Committee of Lyallpur was specified to be one of the Municipal Committees in respect of which Government shall be the Controlling Authority. Section 110 of the Ordinance reads as follows "The provisions of Articles 73, 75, 76 and 79 in Chapter 11 of Part V of the order shall mutatis mutandis apply to Municipal Committees as they apply to 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 Local Fund were a reference to Municipal Fund ; (c) any reference to the Controlling Authority were a reference to the Controlling Authority under this Ordinance ; and (d) any reference to the Order were a reference to this Ordinance." "Order" referred to in the above section means the Basic ‑Democracies Order, 1959. (See section 3 (30) of the Ordinance). Article 73 of the Order provides that the Government. shall exercise general supervision, and control over the local, councils in order to ensure that their activities conform to the purposes of the Order. Article 75 of the Order empowers the Controlling Authority to direct any local council or any person responsible thereto to take such action as may be necessary for carrying out the purposes of the Order. Under the Basic Democracies Order "Government" in relation to any local area in a Province means the Provincial Government. Under section 111 of the Ordinance if in the opinion of the Controlling Authority anything done or intended to be done is not in conformity with law, or is in any way against public interest, the Controlling Authority may, by order, quash the proceedings, suspend the execution of any order made by the Municipal Committee or require the Municipal‑ Committee to take such action as may be specified. The provisions referred to above clearly point to the conclusion that the Provincial Government had ample powers to pass the order in question. The learned counsel for the respondent Muhammad Ramzan has drawn our attention to section 119 of the Ordinance which deals with appeals. He has also referred to Notification No. SO 1 (LG‑RWP‑1 (54;/61 according to which the Additional Commissioner of Sargodha Division is to exercise the powers of Commissioner under the Ordinance in respect of the hearing of service appeals of employees of the Municipality in question. His contention is that after the dismissal of the appeal of Ali Muhammad by the Commissioner the order of appointment of Muhammad Ramzan became final and it could not be called in question before the Provincial Government. It is true that an, order passed in appeal is final and cannot be called in question "in any Court", but this does not mean that the Provincial) Government in its capacity as the Controlling Authority cannot] interfere with the order. The provisions of section 119 do not affect the powers of the Provincial Government under section

110. We are therefore unable to uphold the decision of the High Court that the Provincial Government's order ‑ setting aside the appoint ment of the respondent as Garden Superintendent was passed without lawful authority and is of no legal effect. The appeal therefore is allowed and the judgment of the High Court is set aside. There will, however, be no order as to casts. Appeal accepted.