1979 PLP 133 (CLC)

(a) the preparation of the annual revenue budget of the Corporation and approval of that budget and expenditure not included in its annual budget for capital and development expenditure ; (b) the formulating and implementing of all programmes and policies ; and (c) the making of plans for technical development within the country and for promotion of the Corporation's interest abroad." Sections 4 to 9 are part of Chapter III captioned as `management' and all the powers exerciseable by the Board are given therein. Section 9 provides that the Board may, from .time to time delegate any of its powers to the Director-General or any other officer, of the Corporation.

17. Chapter IV deals with the functions of the Corporation' which are given in section

10. Function means the doing of a thing, performance, activity, duty peculiar to any office. Power means moving force of anything, right to command, control or influence for producing an effect. Thus the Corporation has been created to do a lob or achieve an object or a purpose but the capacity to control or influence , that activity must be placed at certain places to get the desired performance. That control resides in law, in the Board but it may be given to certain officers by way of delegation under section 9. ?

18. Chapter V provides for the `Establishment'. Section 11, the first section under it reads:- "The Board may, from time to time, employ such persons as it may consider necessary for the performance of its functions on such terms and conditions as it may prescribe by regulation." (emphasis supplied) This section concerns new employees, as well the other posts to which the transferees under section 12 may be promoted. Section 12 authorises the Federal Government to transfer to the Corporation such of the employees of the Government of Pakistan as were in the Information Service of Pakistan. It is provided that the transfer will be made on the same terms and conditions to which those employees were entitled immediately before the commencement of the Act. Such employees were entitled to give their options: It is further stated in subsections (3) and (4) that the persons transferred to the Corporation would cease to be members of the Information Service of Pakistan on such transfer and their terms and conditions of service shall not be altered by the Corporation to their disadvantage.

19. The petitioner belongs to the second category but his future service would be regulated by such regulations as do not alter his terms and conditions to his disadvantage. The petitioner was designated as Controller (Administration) after transfer under section 12 and was asked to opt where he would like his seniority to be fixed. He opted for the Administration Department: This option is irrevocable and so binds both the parties. The first question requiring consideration is whether the Director-General is empowered to transfer the petitioner at all.

20. The Director-General may derive his powers from the following three sources- (i) as a Chief Executive ; (ii) as a delegate under section 9 ; and (iii) from the regulations. As a Chief Executive, the Director-General can only execute the decision or orders of the Board passed particularly or generally. In this case there is no specific or general order passed by the Board to be executed by the Director-General. Adm4tedly no power to transfer has been delegated by the Board to Director-General. Section 11 read with sections 12 and 22 provide that the terms and conditions of employees shall be regulated by regulations. It is the case of the petitioner that the Board has already framed Service Regulations under section 22 of the Act and that the only power conferred under regulation 5.38 on the Director-General is to transfer an employee from one unit to another, from one section to another or from unit to Headquarters, but no power to transfer a depart mental head within the Headquarter is given to him. The respondents state that these are only draft regulations and that no approval of the Federal Government having been obtained so far, as required by section 22, the draft regulations are not operative. The petitioner had drawn my attention to Annexure XXVI to say that the respondents had in fact been operating above-mentioned Service Regulations. May be that was done unauthorisedly or in anticipation but I have no reason to differ with the stand taken by the respondents particularly when the plea is supported by the Deputy Attorney-General also. I, therefore, proceed on the basis that no such regulations have been framed. Thus there is no power even under regulations authorising the Director-General to transfer the petitioner.

21. The next question is, is there an inherent power in the Chief executive to effect transfer. Such a situation could be presumed, if the Act was silent about it, so as to ensure that the purpose of the Act was achieved. However, the Act in this case specifically conferred all the powers on the Board, subject to the regulations approved by the Federal Government. It is stated by the respondent that as the Board has delegated the power to create and abolish a post to the Director-General in respect of all posts except that of a Director, it should be presumed that the power to appoint, dismiss and transfer have also been delegated.

22. There is, however, nothing to show that a power to transfer, appoint or promote an employee has also been delegated to him. The only delegation of powers brought to my notice is contained in Annexure R/l. This delegation was made on 10th September 1974, and it authorised the Director-General to create posts under certain conditions or abolish posts. 'The contents of the draft regulations show that no inherent power was intended to be left with the chief executive. Had hat been so there would be no necessity to frame regulations with regard to practically all the matters. The very subjects of the regulations point out that all powers were intended to be regulated by the Board by regulations. The draft regulations 5.15 read with 4.08 (10) show that the Chairman and not the Director-General is the appointing authority in the case of Controllers.. Draft regulation 5.38 further shows that transfer means movement of one employee from one unit to another, from one section to another or from a unit to the Headquarters and vice versa in pursuance to a transfer order issued by the appointing authority. It is rightly argued that firstly the transfer in question is not. a movement of the nature specified above and secondly it has not been ordered by the appointing authority. In this view of the matter, the transfer of the petitioner as Controller from one department to another by the Director-General was without authority.

23. The plea taken on behalf of the respondents was that it is a change within the department and that neither petitioner's lien nor any other right or privilege has been disturbed. According to them, the post of Controller (Audience Research) is under the administrative control of Director (Administration and Public Affairs) and so the change is within the same department. Reliance was placed on Annexure R/7, an organisation chart, wherein the Controller (Audience Research) has been shown under the administrative control of the Director (Administration and Public Affairs). Annexure R/6(ii) also shoes that right from the beginning the subject of `listener's research has been under the administrative control of Administration Department. What the organization chart shows is that the same Director controls not merely the Administration but the Public Affairs as well. They, however, do not prove that the Audience Research is a part of Administration. In faci Note 7(ii) on the file No. PER-1/1(5)/78, produced by the respondents in support of their case amply clarifies the position. The Note reads as under:- "The post of Controller (Administration) be abolished with effect from 13-9-1978. (Chairman has agreed that there will be only one post of Controller, in the Administration Department, instead of two)." Thus the post of Controller (Personnel and Administration) is the only post now left behind in the Administration Department. The post of Controller (Audience Research) concerns Public Affairs and is in no case part of Administration. The transfer of the petitioner is, therefore, outside the Administration Department.

24. I, however, agree with the learned counsel for the respondents that a competent authority can transfer, in public interest, an employee to an equivalent post, involving such duties as he can perform, provided his terms and conditions are not violated. But, if qualification for a particular post have been specified with exactitude, the respondents must show that the petitioner is qualified and that his refusal to do the other job is unreasonable. The apprehension of the petitioner is that as he is not qualified for that job, and as he is likely not to be able to perform it at all or do so efficiently the respondents would get him declared inefficient unsuitable after some time and throw him out of the job.

25. Undoubtedly, a person unqualified for a job will not be able to do it properly and efficiently and, therefore, the apprehension of the petitioner does not ring illogical. Thus though ordinarily, temporary transfer in public interest of a permanent employee from one Department to the other, in any exigency of service, without interfering with his lien, seniority and terms and conditions as to pay, allowance and other admissible amenities, may be quite valid, yet it will not be permitted if the petitioner is admittedly not qualified for the job and fears it a ruse to throw him out of the job. Such an action will amount to interfering with his terms and conditions of service.

26. The post of Controller (Audience Research) had been created after a detailed study, as is clear from Annexure R/4 and R/14 supplied by the respondents. Annexure R/4 shows the staff required for the office of Controller Annexure R/14 is a proposal to set up the Audience Research section. It gives in detail the set up, methods, organization, qualifications, duties and functions of the staff to be employed. The learned counsel for the petitioner referred specifically to the qualifications of the Controller, which are as under :- "2nd class Masters Degree with 15 years experience or Ph. D. with 12 years experience."

27. It is also stated in the proposal that the recruitment should be made according to the qualifications and the persons already employed, possessing the requisite qualifications, can also compete. No relaxation of these qualifications is provided any where. The plea of the petitioner was that he did not fulfil the above requirements. 'The respondent did not controvert that in term- but stated that the petitioner had experience and knew the job well and could perform those duties. He, however, did not, state that it was only a short term, temporary or make-shift arrangement and that the petitioner would revert to his post soon after the permanent arrangement was made. Nothing was brought on record to show if any step had been taken to employ a permanent Controller (Audience Research) in the meanwhile. It, therefore, appears to me that it was a permanent transfer on- a post for which the petitioner was not qualified. It is further supported by the fact that the post held by the petitioner has been abolished and the other equivalent post created has been filled up by promotion on a regular basis. It, therefore, cannot be claimed that the petitioner's appointment was in public interest. Rather, it amounts to removal of the petitioner from his job.

28. Again, though according to the documents referred to in para. 23 above, the petitioner should have remained under the control of Director Administration and Public Affairs even on transfer to the new post, yet respondent No. 3 specifically directed in his order (Annexure `M') that he will work directly under the D1reci:Or Programmes. The learned counsel for the respondents had attempted to show- from other documents that as the Director Administration was no longer there and as his job was being looked after by the Director Progammes, respondent No. 3 felt the necessity of making this specific direction.

29. I am afraid, the explanation given is neither correct nor does it improve the situation. It is clear from the 1st Note on file No. PER-1/2(321)(78 that Qamar Sardar Khan. F. D., was the Director Administration in August 1978, and not the Director Programmes. Again, if the Controller (Audience Research) was a post in the organization of the Director, Administration and Public Affairs as shown in Annexure R/7, there was hardly any need of giving the above direction. Any particular Director who may be looking after that Department in the absence of Director, Administra tion and Public Affairs would automatically control the Controller (Audience Research) as well and the control would revert to the Director Administration, etc. as and when he was available.

30. The next question is was this transfer made mala fide and for extraneous considerations. The following factual situation obtaining in this case amply proves that there was an anxiety on the part of the respondents to oust the petitioner from `Administration' and see that he is not able to come back to it :- (i) on 6th April 1978, the petitioner was transferred to Rawalpindi II station and acting charge of his post was given to Mr. A. A. Hanafi (Annexure R/15) ; (ii) on cancellation of that transfer, the petitioner was not allowed to join his post but appointed on 15th August 1978, as Controller (Audience Research), a post which did not exist at the relevant time and was created on 26th September 1978 ; (iii) the post of Controller (Personnel) which was created in 1975, remained unfilled and was redesignated on 5th October 1978, as Controller (Personnel and Administration) with effect from 15th August 1978, to be filled by Mr. Hanafi on 13th September 1978. (iv) the post of Deputy Controller.(Personnel) was abolished w.e.f. 13ih September 1978 ; (v) Mr. Hanafi was promoted as Controller on 13th September 1978, and he took over as Controller (Administration and Personnel) though that post was not created on 5th October 1978 ; (vi) the post of Controller (Administration) was abolished on 26th September 1978, with effect from 15th August 1978 ; (vii) the post of Controller (Audience Research) was created in the place of abolished post of Controller (Administration) vide order ; dated 24th September 1978, of the Director-General, at paragraph 10 of File No. PER-1/ 1(5)/78. (viii) the petitioner was also asked, to look for another house of his entitlement, to vacate the official residence in his possession by 30th November 1978, and restore its vacant possession to the owner."

31. Further, the document annexure R/8 placed on record alonwith the written statement shows that an exercise had been undertaken in September 1975, to upgrade the post of Deputy Controller (Personnel) to that of the Controller (Personnel) for the reason that the work load had increased there many fold. No appointment was made against it till September 1978. After an elaborate research by two Specialists, the post of Controller (Audience Research) was created. On the other hand, there is neither any study nor any proposal for merging the posts of Controller of Administration and Personnel or abolishing the post of Controller (Administration). The delegation of powers to the Director-General is, however conditional and not absolute. It provides that the `instructions issued by the Board regarding staff composition and work standards are strictly observed'. The post was abolished abruptly on 26th September 1978, with effect from 15th August 1978. The post of Deputy Controller was also abolished on the same date. There is no data or study to show that either the administration field had decreased or the problems connected therewith had vanished.

32. Despite the above disputed exercise for which there appears to be no justification, the fact of the matter is that there was one post of Controller in the Administration Department to start with and there came out the same one job at the end. The change of nomenclature of a' job does not amount to abolition of the job. It comes about only in the very function, the very purpose or the very job is abolished. The, law looks not at the form but the substance and never views with favour a colourable exercise of a power. It is crystal clear from the above that the', post of the Controller in the Administration Department was never abolished. It subsists there even now. The entire exercise referred to above was to oust the petitioner from his permanent Department and to hand over the charge of the same to another. Certainly the reasons; as given above, are neither germane to good administration nor are they for public good. They are clearly extraneous to the Act. Such a situation had fallen to be considered by the Supreme Court in a number of cases and I may here refer to a few. Their Lordships in Federation of Pakistan V. Saeed Ahmad Khan (1) observed as under :- " `Mala fides' literally means `in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit one-self. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide . . . . ." The observations of their Lordships in Abdul Rauf v. Abdul Hamid Khan (PLD1965SC671) are as under :- " ..A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a rnala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes." The views expressed in State v. Zia-ur-Rehman (PLD1973SC49) are as follows :- " .. . High Court would be entitled to go into the question of mala fides or colourable exercise of power, for, such exercise of power is not regarded to be action in accordance with law. It will thus be seen that, so far as this Court is concerned, it has consistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because, no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide . . . . ." For the reasons given above, the impugned order is, declared to be without lawful authority and of no legal effect. The petitioner shall, therefore, be deemed to be holding his permanent post. The respondents shall also pay costs. Petition accepted.