P L D 1957 (W (PLP)

RAHMAN, C. J.‑

Writ Petition 830 of 1957, has arisen in the following circumstances. Respondent 2, Sardar Naimullah khan, was appointed Executive Officer of the Kasur Municipal Committee for a period of five years by order of the former Punjab Government dated the 11th November 1949, passed under the provisions of the Punjab Municipal (Executive Officer) Act, 1931, (hereinafter referred to as the Act). He assumed charge of his office on the 8th December 1949. On the 8th December 1954, when his period of appointment would have expired, he received an extension of service for another three years, by order of the Punjab Government, till the 8th December 1957. In October 1956, respondent 2 joined the evening classes in the law College at Lahore with the permission of the Municipal Committee, Kasur. On the 19th June 1957, by means of a letter addressed to the President of the Committee, respondent 2 resigned his post, In this letter he mentioned that his health bad been poor, that he intended to join the LL. B. Class in August 1957, and, therefore, wanted to recoup his health before then, that his own tenure of office would expire in the beginning of December 1957, and that, in the circumstances, he would not be able to discharge the duties of his office satisfactorily. In consequence, he requested that he may be relieved with effect from the 19th July 1957, and that the letter may be regarded as a statutory notice. He mentioned some other matters concerning his provident fund etc. which are not material for our purpose. The municipal committee passed a resolution in its meeting held on the 28th June 1957, by which the resignation was accepted, but it was added that the resignation would take effect from the 13th of July 1957, afternoon. Apparently, some members spoke against the Executive Officer on the occasion and charged him with acts of commission and omission against the interests of the municipal committee, while others spoke in his favour and even raised the legal objection that the com mittee was not authorised to accept the resignation which should be forwarded to Government. It appears that the Executive Officer had applied for leave on the 18th June 1957, from the Municipal Committee. which was granted till the 6th July 1957. The 7th of July was a Sunday and there were Eed holidays from the 8th to the 12th of July 1957. Respondent (2) joined office on the 6th July 1957, on the plea that he did not know whether the 6th July 1957, was included in his leave period or not. On the 13th July 1957, he wrote a letter to the President saying that he was going to Lahore to take instructions from the Govern ment in the matter of his resignation which was under the consideration of the Deputy Commissioner, Lahore. The same day at 5 p.m. he brought an order from the Deputy Commissioner suspending the execution of the resolution by which his resignation had been accepted by the committee. In this order, the Deputy Commissioner referred to the fact that the appointment of respondent (2) had been made in his capacity as Executive Officer by Government and expressed the opinion that the power of acceptance or rejection of his resignation was, therefore, vested in the Government and not in the committee. He, took exception to the resolution of the committee as in excess of their powers and consequently suspended the resolution in question. The order of the Deputy Commissioner is challenged as illegal and ultra vires his powers, by this petition presented on behalf of Syed Sharif Hussain, the President of the Municipal Committee, Kasur. The position that an Executive Officer occupies vis a vis a Municipal Committee, to which he may be assigned or appointed, is somewhat anomalous in law. Section 3 of Act, prescribes that notwithstanding anything to the contrary contained in sections 26 and 27 of the Punjab Municipal Act 1911, the committee has the power by a resolution to be passed by not less than five‑eighths of the total number of members constituting the committee for the time being at a meeting to be convened for that purpose, to appoint an Executive officer with the approval of the Provincial Govern ment, on such pay not exceeding Rs. 1.500, inclusive of all allowances, as it may deem fit. This appointment would be 1 renewable for a period of five years, provided that in case of 4 such renewal the maximum salary inclusive of all allowances shall not exceed Rs. 2,

000. If, however, the committee fails to appoint an Executive Officer within three months from the date of the notification issued under subsection (2) of section 1 of the Act, the Provincial Government has the authority to appoint a person as Executive Officer of the committee on similar terms of pay. Subsection (6) of section 3 declares that the remuneration of such Executive Officer shall be payable by the committee from the municipal fund. Subsection (7) of that section lays down that the Executive Officer may at any time be suspended or removed from office by the Provincial Government and shall be so suspended or removed if at a meeting of the committee convened to consider the question of his suspension or removal, not less than five‑eighths of the total number of members constituting the committee for the time being, vote in favour of his suspension or removal and if the Executive Officer is suspended, the committee shall appoint some person with the approval of the Provincial Government to officiate as Executive Officer. Subsection (8) of section 3 provides that leave may be granted to the Executive Officer by the committee. Subsection (9) of the section enacts that whenever an Executive Officer dies, resigns or is removed, the committee shall within three months of his death, resignation or removal, appoint ' another person to be Executive Officer in the manner provided in subsections (1) to (3) and if the committee fails to appoint such a person within such period, the Provincial Government may appoint an Executive Officer in the manner provided in subsection (4). Sections 4. 5, 6, 7 and 8 of the Act define the powers of the Executive Officer with regard to the business of the municipal committee and its functions. Section 9 gives the right to the Executive Officer to attend all meetings of the committee, except one convened for the purpose of con sidering the question of his suspension or removal and of any sub‑committee and to take part in discussions but subject to the qualification that he shall not move any resolution or vote at such meetings. He is bound to attend any meeting of the committee or of a sub‑committee if required to do so by the President. Section 10 vests in respect of the Executive Officer, in the Provincial Government, the Commissioner and the Deputy Commissioner, all powers of control, inspection, requisition, suspension and all other powers whatsoever that are conferred upon them respectively in respect of the com mittee by Chapter XII of the Municipal Act. The question arises whether the Executive Officer is an employee of the committee or of the Provincial Government. After considering the relevant provisions of the Act, it seems to us that the Executive Officer is an employee of the committee, although in certain contingencies he may be appointed by the Provincial Government or suspended or removed from his office by them and is subject to their super visory jurisdiction, like the Committee itself. But this does not destroy the relationship of employer or employee that obviously subsists between the committee and the Executive Officer. Apparently the position is that even when Govern‑1 meat appoints an Executive Officer they do so for the benefit of the committee who is to be the paymaster. It is significant that if the committee passes a resolution by the requisite majority mentioned in subsection (7) of section 3, asking for suspension or removal of the Executive Officer, that has necessarily to be given effect to. This view is supported by authority. Reference in this connection may be made to Mangal Sain v. The State of Punjab (A I R 1952 E. Pb. 58 (D B)). In this case a Division Bench of the Punjab High Court, India, held that an Executive Officer appointed under the Punjab Municipal (Executive Officer) Act, 1931, does not hold a civil post under the State within the meaning of Article 311 of the Indian Constitution, which corresponds to section 240 of the Government of India Act, 1935 and Article 180 of our Constitution. It was pointed out that a person may be the servant of another although a third party has the power of appointing or dismissing him. There is no express provision in the Act or in the Punjab Municipal Act, 1911, requiring that a resignation tendered by an Executive Officer has to be accepted by Government. It seems to us that all rights of an employer vest in the committee, in respect of an Executive Officer, barring those which are specially conferred on Government by the Act. It would be, therefore for the committee to accept such a resignation. Indeed, it is conceded by Mr. Khurshid Ahmad who appeared for the Deputy Commissioner, Lahore that an Executive Officer is not an employee of the State. His only contention is that in view of the large powers enjoyed by the Government in respect of the appointment and removal or suspension of an Executive Officer, his resignation from the post should also require confirmation by Government. For this proposition he was unable to cite any authority and we are not inclined to subscribe to that view. Section 45 of the Punjab Municipal Act, 1911 provides that, in‑ the absence of a written contract to the contrary, every officer or servant employed by a committee shall be entitled to one month's notice before discharge or to one month's wages in lieu thereof and he can similarly resign his employment, provided he gives one month's notice or forfeits one month's wages in lieu thereof. Apparently this was the provision the Executive Officer had in mind when he mentioned in his letter to the President of the committee, that the letter in question may be regarded as a statutory notice on his behalf. Sardar Muhammad Iqbal, who appeared for respondent 2, suggested that this section probably did not cover the case of his client who, he contended, was not employed by the committee but appointed by Government. In view of the above discussion, we are unable to accede to this contention as correct. This contention indeed would seem to be against the position adopted by respondent 2 himself in his letter to the President. Sardar Muhammad Iqbal also attempted to argue that as the Executive Officer was employed for a definite period he could not have resigned his post before the expiry of that period. This argument, if accepted, would make the provisions of section 45 of the Punjab Municipal Act, 1911, completely nugatory. We are, therefore, unable to agree that any such limitation exists on the power of an Executive Officer to resign the post. Indeed, unless there is a statutory power in respect of a particular employment, no person can be forced to serve another against his will. Learned counsel for respondent (2) tried to adopt an alternative argument based on section 12 of the Provincial General Clauses Act, which provides that the authority passing an order would have the power of varying it also. He suggested that the resignation in effect amounted to variation of the order of appointment passed by Government in the case of respondent (2) and this variation, therefore, required the approval of Government. The argument, in our opinion, is unsound, Section 45 of the Municipal Act must be read as part of the conditions of service of the Executive Officer from the very start and therefore no question of variation of the original appointment order by a resignation permissible under section 45 of that Act, arises. The upshot of the whole discussion is that the resigna tion tendered by respondent (2) to the committee and accepted by that body, apparently did not require any approval by Government. The only ground mentioned by the Deputy Commissioner in his order suspending the resolu tion of the committee by which the resignation was accepted, was that they had exceeded their legal powers in doing so. This view is erroneous in law and vitiates the order of suspension. To the extent therefore that the impugned order sought to suspend the resolution of the committee accepting the resignation, the order was ultra vires the powers of the Deputy Commissioner. It must consequently be quashed as untenable in law and we order accordingly. We further issue a direction restraining respondent 2 from functioning as Executive Officer as he had ceased to occupy that post after the acceptance of his resignation by the committee, That resignation, we must make it clear, would take effect pot from the 13th of July 1957, as the committee apparently thought, but from the date of expiry of the statutory notice given by respondent 2, namely the 19th July 1957. Res pondents 1 and 2 are also directed to abstain from interfering in any manner in the exercise of the right of the Municipal Committee, Kasur, to appoint another person as Executive Officer under the provisions of the Act. The parties will be left to bear their own costs. A.H. Petition accepted.