P L D 1967 Lahore 1251 (PLP)

MUHAMMAD AKRAM, J.‑This is a petition under Article 98 of the Constitution of Islamic Republic of Pakistan by Dr. Abdul Hafeez against the respondents calling in question the validity of the order passed for his compulsory retirement from the post of the Assistant Medical Officer of Health held under the Lahore Municipal Committee.

2. The Municipality by its resolution No. 161 dated 29th July 1964, decided to retire the petitioner by virtue of the powers vested in it under the West Pakistan Local Councils and Municipal Committees Servant; (Further Usefulness in Service) Rules, 1963 (hereinafter referred to as the Rules). These Rules were promulgated by the Governor of West Pakistan on/ 6th of December 1963 in the exercise of the powers conferred) on him by Article 44 read with Article 89 of the Basic Democracies Order, 1959 (Presidential Order 18 of 1959) and section 291 read with section 121 of the Municipal Administration Ordinance, 1960 (X of 1960), Under rule 3, the age of superannuation in the case of the employees of Local Councils and Municipal Committees was raised to sixty years. This rule is, however, subject to the important conditions laid down in rule 5 and in order to determine the further usefulness in service of a employee, his case was liable to be reviewed in accordance with the rules at two stages. The grievance of the petitioner in this case is that he was made to retire prematurely in contravention of the rules applicable to him.

3. Before this on the 17th of August 1964, the petitioner had filed a similar Writ Petition No. 1087 of 1964 in this Court under Article 98 of the Constitution of Islamic Republic of Pakistan against the Chairman, Lahore Municipal Corporation challenging the validity of the order of his compulsory retirement. But the High Court after sending for the report in the case, dismissed the writ petition in limine on 18th August 1964 on the short ground that the petitioner had an adequate alternative remedy open to him byway of an appeal under rule 10 and he must avail o that remedy before coming to this Court. The petitioner then Pled an appeal against the order of his compulsory retirement which was dismissed by the Commissioner, Lahore Division, Lahore on 13th October 1964 as barred by time. At the same time the learned Commissioner remarked that he triad gone into the character roll of the petitioner, which was the darkest he had come across. The petitioner then filed this second writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan to avoid the order of his compulsory retirement confirmed in appeal by the Commissioner. The petitioner has impleaded the Lahore Municipal Corporation as necessary respondent No. 4 to this petition under the order of this Court.

4. The brief facts relevant for the disposal of this petition are these: The petitioner was born on 19th March 1910. He joined the service of the Municipal Committee, Amritsar, as a School Medical Officer on 11th March 1936 and rose to be the Assistant to the Medical Officer of Health there. On the partition of the Indo‑Pakistan Sub‑Continent, after his migration to Pakistan, the Petitioner was selected for appointment as Sub Assistant Health Officer in the City of Lahore Corporation, Lahore, on 1st April 1949 and became the Assistant Medical Officer of Health in the Corporation in February 1956. The City of Lahore Corporation was later on superseded by the Lahore Municipal Corporation established under the Municipal Administration Ordinance (X of 1960) and the petitioner continued to serve as the Assistant Medical Officer of Health under it in the grade of Rs.250‑20‑400‑25‑600‑25‑750 (revised to Rs.400‑25‑760). His previous service in Amritsar and also under the City of Lahore Corporation was counted in continuation of his service under the Lahore Municipal Corporation for the application of these rules to him and this is not disputed before us. So that the petitioner was deemed to have completed 25 years of service qualifying him for pension on 10th March 1961. However he has still to attain the age of sixty years on 18th March 1970.

5. On 11th April 1964, respondent No. 1, the Chairman, Lahore Municipal Corporation referred the case of the petitioner to the "Review Committee", constituted under rule 4 for his compulsory retirement from service. The petitioner appeared before the Committee on the 12th of May 1964 in response to the notice sent to him for the purpose. The Committee examined his record and after hearing him, found that he had earned very bad adverse reports consistently for the past 8 years or so from four different Medical Officers of Health and three different Chairmen and, therefore, recommended that he may be retired from service compulsorily. The Chairman Lahore Municipal Corporation conveyed these recommendations of the Review Committee to the petitioner on 2nd June 1964. Finally the matter was placed before the Lahore Municipal Corporation who by its resolution No. 161 dated 29th July 1964, after considering the recommendation of the Review Committee, was satisfied that the petitioner had outlived his usefulness in the service and decided to retire him with effect from that date.

6. In the main, the learned counsel for the petitioner has launched a four fold attack to contend that the impugned order to remove the petitioner from service was passed in flagrant disregard of some of the mandatory provisions of the rules and at this stage we propose to examine this contention in detail before going into the other controversies raised before us on behalf of the parties.

7. The West Pakistan Local Councils and Municipal f Committee Servants (Further Usefulness in Service) Rules, 1963 were promulgated on 6th of December 1963. They are admittedly applicable to the petitioner. Under rule 3 he could expect to be retained in service until he attained the age of 60 years. This was possible after he has fulfilled the conditions laid down in rule 5, applicable to him. Rule 5 says: "Notwithstanding anything contained in rule 3, the case of every person to whom these Rules apply shall be referred by the Appropriate Authority to the Review Committee, in order to determine the further usefulness in service of such person, at two stages, namely: (a) when he is about to complete twenty‑five years of service qualifying him for retirement; and (b) when he is about to complete the fifty-fifth years of his age: Provided that the case of a person, who has completed before or completes on, or will complete within six months of the commencement of these rules, twenty‑five years of service qualifying him for retirement or the fifty‑fifth year of his age, as the case may be, may be reviev6ed within six months from the commencement of these Rules in the manner provided hereafter, if such persons' case was not reviewed before the commencement of these Rules, for the purposes of retirement either on the completion of twenty‑five years of qualifying service or on the attainment by him of fifty‑five years of age, under any rules then applicable to him: Provided that if a person completes the fifty‑fifth year of his age earlier than the completion of twenty‑five years of service (qualifying him for pension), his case shall be considered only when he completes the fifty‑fifth year of his age." The petitioner had completed 25 years of his service qualifying I him for retirement on 10th March 1961, prior to the promul gation of the Rules and he did not attain fifty‑five years of his age 18th March 1965. Therefore, clauses (a) and (b) of the main rule were not applicable to the petitioner. His case was covered by the proviso to rule 5 and could be reviewed within six months of the commencement of the Rules, before 5th June 1964 at the latest. For this purpose the proceedings in his case were initiated in time, on 11th April 1964, by respondent No. 1 The Review Committee heard the petitioner on ‑12th May 1964 and recommended his case for compulsory retirement. The appropriate authority, namely, the Lahore Municipal Corporation decided in its meeting held on 29th July 1964, to accept the e recommendation of the Review Committee and to compulsorily retire him from service with immediate effect. The notice terminating the service of the petitioner was despatched to him by the Chairman on the 13th of August 1964. It is, therefore, clear that the impugned order of the retirement of the petitioner was passed by respondent No. 4 after the target date when the Municipality was no loner competent to ,review his case. It appears that by virtue of the West Pakistan Gazette Notification No. SOII (LQ)‑3(27)/64, dated the 16th October 1964 the proviso to rule 5 was amended and the time prescribed for the review of the cases covered by it, was extended from 6 months to one year. But this amendment was introduced with effect from 16th of October 1964 and it did not have any retrospective effect. Therefore, it did not validate the impugned order already passed against the petitioner on 29‑7‑1964.

8. The second objection of the petitioner based on rule 5 is that his case could have been reviewed by the "Review Committee" on a reference made by the "Appropriate Authority". Admittedly, within the meaning of rule 2 (t) the "Appropriate Authority" in the case of the petitioner was the Lahore Municipal Corporation who was competent to remove him from service. But in the instant case this initiative was taken by the Chairman Lahore Municipal Corporation and he made the necessary reference to the Review Committee for the purpose. At that stage the Lahore Municipal Corporation was not even consulted. Under section 22 (2) of the Municipal Administration Ordinance (X of 1960) the executive powers of the Municipal Committee are vested in its Chairman and on first impression this objection of the petitioner appears to be one of form and without any substance in it. But, on a careful consideration, it appears to us, that the objection is fundamental and goes to the root of the case. Under the opening part of rule 5, reproduced above, the case of every person to whom these Rules apply "shall" be referred to the Review Committee at the two stages for scrutiny and the reference has got to be made as a matter of course in the case of all the employees without any exception. But in this respect the requirements of the proviso are materially different. The case of an employee, like the petitioner, falling under the proviso "may" be reviewed within six months of the commence ment of the Rules. It is not obligatory that his case must be subjected to the review in order to obtain clearance for him to continue in service. The discretion in this respect vests in the "Appropriate Authority" and not the Chairman. The Authority had got to apply its own mind and exercise its own judgment before deciding to refer the case of the employee to the Review Committee. Sub‑rule (2) of rule 6 lays down that "when referring a case to a Review Committee, the Appropriate Authority shall, in the order of reference, give the facts of the case, along with its recommendations whether in its opinion the person concerned shall be retained in the service or not.." It is the subjective satisfaction or the Appropriate Authority that matters at that initial stage. This is by no means a mere matter of routine for it. In this respect the Authority has to arrive at its own tentative findings and it cannot abdicate its powers under the Rules to the Chairman. In Capt. Muhammad Azhar v. Commissioner of Karachi and another (P L D 1966 S C 253) their Lordships of the Supreme Court noticed that the Commissioner of Karachi was not competent to issue the show‑cause notice to the petitioner before them and the question arose as to the effect of this initial 0rfe9ts in the notice. Could it be ignored on the ground that the notice was just a formality? It was argued before the Supreme Court that if the ultimate decision to remove the petitioner from service was taken by the competent the defect in the notice that was served on him by the subordinate authority should not invalidate the proceedings forever, the Supreme Court on the interpretation of the relevant rule before it, repelled the contention with the following significant remarks "It will be observed that the authority issuing notice has to come to a conclusion of guilt and to provisionally determine the penalty before it issues a show‑cause notice. The show cause notice served by the Commissioner was therefore void and from this point onwards the proceedings were without jurisdiction." In the same connection some of the observations in the well- known case of Suraj Narain Anand v. The North West Prontier Province (AIR194fC) are also pertinent to note although the facts were little different. Repelling the contention of the respondent that the rejection of tile appeal by the Inspector‑General against the order of dismissal of the appellant in that case was equivalent to an order of dismissal passed by him and the initial defect in the order of the subordinate authority was thereby cured for the purposes of subsection (2) of section 240 of the Government of India Act, the Federal Court observed: "We cannot accede to this contention. In theory as well as in practice, there is a well‑marked difference between a decision given by an officer who acts in the consciousness that he is primarily responsible for the investigation and decision of the case and the act of one who is expected only to satisfy himself that another officer who had the primary responsibility has properly dealt with the case. The distinction seems to us one of substance and is not merely formal or technical." In Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD1958SC104) the Supreme Court has held that if on the basis of void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. In the circumstances of this case we find that this argument of the learned counsel for the petitioner is irrefutable. Inasmuch as the initial reference to the Review Committee by the Chairman of the Lahore Municipal Corporation under rule 5 was without lawful authority, all the subsequent proceedings, the recommendations of the Review Committee and the final order of the removal of the petitioner resting on it cannot be sustained.

9. The petitioner has raised yet another formidable objection under the Rules. This time the objection is against the very constitution of the Lahore Municipal Corporation functioning as the "Appropriate Authority" on the day it met to unanimously pass the resolution No. 161 dated 28th July 1964 for the retirement of the petitioner on the recommendations of the "Review Committee". The Review Committee is constituted under rule

4. It consists of three members, namely:‑ (a) a member to be nominated by the Controlling Authority who shall be the Chairman; and (b) two members to be nominated by the Local Council or the Municipal Committee as the case may be. Sub‑rule (3) of rule 4 provides that "no person shall be appointed as a member of a Review Committee, if he is the appropriate Authority for the case to be referred to the Review Committee". In this case the Review Committee was composed of the Additional Deputy Commissioner (G), Lahore as the nominee of the Controlling Authority and Mian Meraj Din and Dr. Abdur Rashid Arabi, two of the sitting members of the Lahore Municipal Corporation, nominated by it. The petitioner appeared before this Review Committee on 12th May 1964. The Committee after bearing the petitioner was satisfied that he had outlived his usefulness in service after completing 25 years qualifying service and recommended that he should be retired. Afterwards this recommendation was unanimously accepted by the Lahore Municipal Corporation in the meeting held on the 28th of July 1964. Meraj‑ud‑Din and Dr. Abdur Rashid Arabi, as members of the Municipal Committee were present at the meeting. On the basis of these facts it was firstly argued before us that the Review Committee was constituted in contravention of sub‑rule (3) of rule 4 of the Rules. But on a closer examination we see nothing wrong with the Review Committee. The Lahore Municipal Corporation as such was not a member of the Review Committee. The Corporation is a legal entity distinct and E separate from its members under the law. The Municipal Committee had the option to nominate any two persons on the Review Committee and they may as well be from among its own members. To that there can be no bar. 9‑A. However, in our opinion, the two members of the Lahore Municipal Corporation who had participated in the deliberations of the "Review Committee" and formed an opinion against the petitioner, were disqualified from subsequently attending the meeting of the Municipal Committee, on 29‑7‑64, in which this matter came up for final decision. The objection is based on the general principles of natural justice. The two members, having already expressed their opinion against the petitioner in the Review Committee, attended the meeting of F the Municipal Committee with a leaning against him. They came to attend the meeting of the Municipal Committee with their mind swayed by their previous judgment against the petitioner; their natural inclination or bias was towards the respondents and by no means they could be said to be sitting in meeting with an independent mind under the circumstances of the case. At the time they must have been labouring under the inflpence of the opinion formed by them as members of the) Review Committee. In Anwar v. The Crown (P L D 1955 F C 185) Muhammad Munir, C. J. has observed that: "If a Judge is functioning under an influence about his own act . . . which has the effect of paralysing his judicial faculties, there is no fair trial." He further added that: "there is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on. grounds of public policy, disqualified to be a Judge. Thus no Judge can be a Judge in his own cause, or in a cause in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication . . . . . In the same case Cornelius, J. as he then was, has referred to a leading authority on the subject, Dickanson v. Edwards (10 C L R 243) wherein this question was raised in relation to a domestic tribunal of a friendly society. A member of the Society was put up before a disciplinary Committee of which the principal Officer of the Society, called the District Chief Ranger, was a member, for expulsion on the ground of disgraceful conduct, including the use of vulgar abuses with particular reference to the District Chief Ranger. Objection was taken to the presence of the District Chief Ranger on the Committee when the case came up for hearing but the District Chief Ranger continued to sit and an order of expulsion was made. Whereupon an action was brought by the expelled member for a declaration of his rights. Grifith, C. J. in the High Court of Australia observed as follows: "It is said the District Chief Ranger did not take any part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He was a member of the tribunal that tried the case; he was present when it was heard, and, applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether ... For these reasons I think the findings of both the District Judicial Committee and the District Appeal Committee were vitiated by the presence of the District Chief Ranger. " and O' Connor, J., observed as follows:‑ "In interpreting rules which give jurisdiction to any tribunal there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice." This Court has applied the principle more than once to quasi- judicial tribunals. In Mubarik Ali Bhatti v. Fiyaz Ali Khan and others (PLD 1963 Lah.8) the petitioner was working under the West Pakistan Road Transport Board. Rule 6 of the Public Conduct (Scrutiny) Rules, 1959 provided that an appeal from the recommendation of the Screening Committee should be to the appointing authority, Fiayaz Ali was the Chairman of the Screening Committee which had screened out the petitioner for unsatisfactory work. Thereafter he also heard the appeal against him. In these circumstances it was held by a Division Bench of this Court that the hearing of an appeal by an authority who has himself participated in the original proceedings was contrary to the rules of natural justice. Also in Muhammad Abdullah v. The Road Transport Corporation, Lahore and others (PLD 1964 Lah. 743) another Division Bench of this Court observed as under:‑ "No doubt administrative tribunals are not required to follow the procedure commonly known to law Courts but nevertheless in quasi judicial matters they are bound to act in conformity with the principles of natural justice and in accordance with the canons of fair play. It is one of the fundamental and well‑recognised principles of administration of justice that justice should not only be done but it should manifestly and undoubtedly be seen to be done. If one of the members of a tribunal, is biased or, which is the same thing, has prejudged the issue against a party, it is bound to cause reasonable apprehension in the mind of the party that he is not likely to get a fair and impartial deal at the hands of tribunal. If one of the authority or any one of the authorities hearing a case has any pecuniary or otherwise substantial interest or is biased, the defect goes to the root of the constitution of the tribunal which becomes improperly con stituted. The mere presence of a member who is disqualified from taking part in the proceedings of the tribunal renders it incompetent to function as such and it is immaterial what part that particular member played in the proceeding of the tribunal and how far he was able to influence its decision. The member in question was, therefore, disqualified from attending the meeting of the Road Transport Corporation held to consider the case of employee." Similarly in Rehmatullah v. Government of West Pakistan (P L D 1965 Lab. 112) a Full Bench of five Judges of this Court found that Shahzada Alamgir, the then Home Secretary to the Government of West Pakistan had examined the "disturbing reports" about the detenus and passed them on to the Governor with his proposal that action may be taken against them under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. The Home Secretary was also a member of the Review Board constituted to examine the cases of the detenus. In these circumstances the full Bench held that the very Constitution of the Review Board was improper and the report submitted by it was illegal, inasmuch as one of the members of the Board has acted as a Judge in his own cause. Recently in an unreported case of Ch. Ghulam Sarwar v. Conservator of Forest and others Writ Petition No. 1525 of 1965 under the West Pakistan Government Servant (Further Usefulness in Public Service) Rules, 1963, under similar circumstances we have held that Malik Karam Dad, was a member of the Appropriate Committee, which made its recommendations against Ch. Ghulam Sarwar for his compulsory retirement from service. As such he, was disqualified from directing his retirement, in his copacity as the delegate under the Rules. In this connection the Supreme Court of Pakistan in Muhammad Mohsin Siddiqi v. Government of West Pakistan (P L D 1964 S C 64) has held:‑ "The whole proceeding in a departmental enquiry is required by the rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the frame‑work of the judicial administration itself, conditions in which officials can be made prosecutors, Judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and In the case of Frome United Breweries Company Limited and another v. Keepers of the Peace and Justices for County Borough of Bath (P L D 1964 S C 64) Viscount Cave L. C. held that the revocation of a licence by the authorities was invalid because some of the members of the Tribunal had aided the prosecution. His Lordships observed as under:‑ "If there is one principle which forms an integral part of the English Law, it is that every member of a body engaged in a judicial proceedings must be able to act judicially; and it has been hold over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which though in no sense to be called Courts, have to act as Judges of the rights of others. Thus in Reg. v. London County Council. Ex parte: Akkersdyk (1892) 1 Q B 190 where a committee of the London County Council had recommended that a certain music and dancing licence should not be granted, and some members of the Committee had instructed counsel to represent them before the county council and to oppose the application for the licence, it was held that the presence at the hearing of those members of the committee who had instructed counsel to oppose the application vitiated the proceedings, and a rule for a mandamous to hear and determine the application according to law was made absolute. In an Irish case, Reg. (Monaghan County Council) v. Local Government Board (1900) 34 I L T 196 where the authority concerned was the Local Government Board of Ireland, a similar decision was reached. Instances of the application of the like rule to licensing justices in England are Rex. v. Sunderland Justices I'(1901) 2 K B 357 and Colchester Brewing Co. v. Tendring Licensing Justices (1916) 2 K B

126. From the above rule it necessarily follows that a member of such a body as I have described cannot be both a party and a Judge in the same dispute, and that if he has made himself a party he cannot sit or act as a Judge, and if he does so the decision of the whole body will be vitiated." The well‑known case of Rex v. Chesire Licensing Justices (1906) 1 KIB_362) is an exception to this general principle enunciated above. In that case the Justice of a borough was an appointed member of the Committee of quarter session. He presided at the meeting of the Licencing Justices of the borough at which it was decided to refer the question of the renewal of a license to quarter sessions under the Licensing Act, 1904. Repelling the contention that thereby the Justice of the borough was disqualified from sitting on the committee of quarter sessions, Lord Darling, J. observed: "Evidently the Legislature thought that the committee of quarter sessions might want some information from the justices of the borough over and above that which ‑was contained in the report, and it is therefore provided that in addition to making the report they may send one of their member to take part in the consideration of the report. Now, who would be the best person for the justices to choose? I suppose they would not wish the justice who knew least about the public houses in the borough to go. The very reason why he is sent from the borough is, as I think, that he has knowledge on the particular facts relating to the borough, which is not possessed by the other members of the committee of quarter sessions, and that he should be able to place that knowledge at their disposal. Clearly to my mind a justice who had been sitting and taking part in the consideration of the licensing committee, and who had helped to make the report, would know most about it. It is contended that such a man is biased. Well, it may be or it may not be that he is, but the Legislature have, as it seems to me, deliberately provided that such a justice may take part in the consideration of the report. Of course, he may be biased (if that word is to be used) in favour of the report or against it, but no doubt he goes to the committee of quarter sessions with a formed view on the subject of the report. I think this legislation makes an absolute exception to the ordinary rule governing judicial proceedings. Nothing like it has occurred before. There are no words to limit the class of justice who may be appointed by the borough on the committee. There is nothing to say that he is not to be a justice who has already considered the matter: on the contrary, as I have pointed out, the whole object of the Act would seem to be that the justice should be a justice who was conversant with the matter." It is evident from the above that the case was decided on the special provisions of the Licensing Act, 1904 and this piece of legislation was interpretted to have made an "absolute exception to the ordinary rule governing judicial proceedings." There are a number of statutes in England which authorise justices to hear and adjudicate on cases although they have an interest in such cases as ratepayers, or members of local authorities or members of other interested bodies. But these are by way of exceptions to the general rule which is well recognized. In case the Legislature has created a tribunal suffering from some administrative bias, the Courts cannot challenge its decision on the ground that this was against the principles of natural justice. No one can be heard to complain against this inevitable situation created by the statute which must be applied, to the case covered by it, with no mental reservations. The recent case of Mukhtar Hussain v. The District Manager, Provincial Transport Service, Lyallpur (P L D 1966 Lah. 258) was also decided on the basis of this exception and it was observed that: "It is impossible to hold that principles of natural justice which remain undefined can overrule the express provisions of a statute. Rules of natural justice are mere rules of practice to be observed on principles of justice, equity and good conscience, must yield to the provisions of the statute to the contrary." There are a few other well recognized exceptions to this general rule but it is not necessary to discuss them here. In the absence of anything to the contrary, the approach of a quasi judicial tribunal must always be `judicial' and conform to the principles of natural justice to maintain the rule of law. G This is the essence of justice and the very fountain head which must on no account be allowed to be polluted. No doubt there are no uniform standards of natural justice applicable in all cases and the rule is an elastic one. Its requirements may vary with the constitution of the quasi judicial tribunals and bodies having regard to the functions to be performed by them and powers and duties entrusted to them. The nature and the subject‑matter of the dispute brought before them and all other relevant circumstances are to be kept in view in applying this golden rule. Nonetheless in this respect certain broad principle are accepted on all hands. They are deducible from the two Latin Maxims: "Nemo debet essee judex in propria cause" (no one should be a Judge in his cause and the Judges should be above suspicion). The other maxim of no less importance is "audi alleram partem" (bear the other side). In the instant case sub‑rule (3) of Rule 4 of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules does not require he Municipal Committee to appoint its nominees from among its members on the "Review Committee" and there is no compulsion under the law for its members on the "Review Committee" to sit in the meeting of the Municipal Committee at the time the report sent by the former is put up before the latter for its decision.

10. The last objection of the petitioner, based on the Rules is equally vital to his case. Rule8 lays down: "The appropriate Authority shall consider the recom mendations of the Review Committee forwarded to it under sub‑rule (3) of rule 7, and if upon such consideration and after giving the person against whom the recommendations have been made, an opportunity of being heard, it is not satisfied as to the further usefulness in service of such person, under that on or after the completion by him of twenty‑five years of service or on or after the fifty‑fifth years of age, he be retired." Both in terms of this rule as well as on the principles of natural justice, the appropriate Authority was bound to accord a reasonable opportunity of hearing to the affected employee on g the recommendation received against him. But in the present case the Lahore Municipal Corporation did not at all hear the petitioner before deciding to retire him on 29th July 1964. In this connection no opportunity was even afforded to him by the Corporation and we cannot lose sight of this omission which is so fundamental in its character. The Supreme Court has repeatedly adverted to this cardinal principle of natural justice that no man should be condemned unheard. In the most recent case of Abdus Saboor Khan v. Karachi University and another (P L D 1966 S C 536) the Supreme Court has once again emphasized: "The Maxim audi alteram partem (no one can be condemned unheard), embodies one of the settled principles of law and such a principle will be read into the relevant law, unless its application is excluded by express words."

11. Before parting with this subject, we have to dispose of a few further objections raised by the petitioner under these rules. Sub‑rule (3) of rule 7 of the Rules provided that if in the opinion of the Review Committee the retention in service of the person concerned will not be in public interest, it shall with all reasonable despatch, make its recommendations, together with reasons there for, to the Appropriate Authority and also furnish' a copy of the same to the person concerned. In the present case the Review Committee sent its recommendations to the Chairman and not to the Appropriate Authority. Moreover, the Review Committee did not directly supply a copy of its recommendations to the petitioner. It was the Chairman of the Lahore Municipal Corporation, Lahore, who placed the recommendations received by him before the Lahore Municipal I Corporation and also sent a copy of the same to the petitioner. But in our opinion these are purely ministerial acts and the failure by the Review Committee to literally comply with the rule in question was immaterial and of no consequence. These irregularities are by no means serious in their nature. It was also urged before us on behalf of the petitioner that his case had been previously scrutinized in the year 1959‑60 and he was cleared for future service under the law. So, it is asserted, that the case of the petitioner was not at all liable to be reviewed for the second time in 1964. This assertion appears to us to be without any basis and there is nothing on this record to support him in this respect. Lastly relying on certain good reports of the petitioner, his learned counsel attempted to convince us that he holds an otherwise unblemished record of service and the adverse reports against him were mala fide and inspired and that there could not form the basis of the action taken against him. In this respect the Appropriate Authority and the Review Committee were vested with the exclusive powers to examine the record of the petitioner and to form their opinion about his J further usefulness in service and this Court under Article 98 of the Constitution cannot sit in appeal on their decision. Apart from the question of the legality of the impugned order, there is nothing to convince us that their decision in this respect was a mala fide one. The petitioner while employed as the Assistant Medical Officer of Health was not one of the Principal Officers of the Municipal Corporation of Lahore. This is apparent from the provisions of the West Pakistan Municipal Committees (Principal Officers) Rule, 1962. Similarly he was not an Officer of the "Local Councils Service" constituted under the West Pakistan Local Councils and Municipal Committees Service Rules, 1960. As such his case was not covered by rule 2(5) of the West Pakistan Local Council and Municipal Committee's Servants (Further Usefulness in Service) Rules, 1963 (as amended) and the ordinary Review Committee appointed under rule 4 was authorised to examine his case. We find no force in the contention of the petitioner that in his case the District Selection Board constituted under the West Pakistan Local Councils and Municipal Committees Rules, 1963 was competent to act as the "Review Committee". All these sundry objections have no force in them and are hereby repelled.

12. The upshot of the above discussion is that the petitioner has succeeded in establishing that the impugned order dated 29th of July 1964, for his compulsory retirement was made in contravention of the mandatory provisions of rules 5 and 8 of the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Service) Rules, 1963 and the principles of natural justice. But this finding in favour of the petitioner does not conclude the controversy raised before us. At this stage the respondents have taken up the cudgel to contend with vehemence that even if the removal of the petitioner in the instant case was in breach of the Rules, he has no cause of action to apply to this Court for the issuance of an appropriate writ for his re‑instatement against the Lahore Municipal Corporation. Their learned counsel has stressed that this is not a fit case in which the declaration under Article 98 of the present Constitution can be granted to the petitioner. To counter this argument, his learned counsel has, however, asserted that the petitioner while working as the Assistant Medical Officer of Health in the municipality, was holding a civil post in connection with the affairs of the Province within the meanings of Article 177 of the Constitution, entitled to all the protections and guarantees afforded by it against his removal from the service in an arbitrary manner. He also stressed that the removal of the petitioner was at any rate against law and as such his petition under Article 98 of the Constitution is fully competent. These respective contentions of the parties gained considerable importance during the course of the arguments addressed to us in an otherwise simple case. We are, therefore, obliged to, hereinafter, examine them in some detail.

13. In asserting that the petitioner was holding "a civil post in connection with the affairs" of the Province within the meaning of Article 177 of the Constitution, his learned counsel has argued that the term "civil post" is used in the Constitution merely to distinguish it from post connected with the Defence. In Pakistan and another v. Muhammad Ayub Khan (P L D 1965 S C 661) the Supreme Court observed: "A post is either one in connection with the defence or it is a civil post. Prima facie this division of posts into posts connected with defence and civil posts means that these two categories are exclusive of each other so that if a post falls in one category it cannot fall in the other." The learned counsel also cited before us a case from the Indian Jurisdiction reported as Muhammad Matin Kidwai v. The Governor of India (A I R 1953 All. 17) in which the term "civil post", used in section 240 of the Government of India Act, was defined to distinguish it from a post in the defence force. To carry his argument further, the learned counsel for the petitioner has relied on S. D. Marathe v. Pandurang Narayan Josh (A I R 1938 Bom. 419) Dr. S. D. Marathe the petitioner in that revision was a member of the Bombay Subordinate Medical Service under the Government, and he was placed in charge of grant‑in‑aid dispensary. In that connection Broomfield, J. of the Bombay High Court observed: "I can see no justification for this view. Local Self‑Govern ment within the Provinces is obviously a branch of provincial affairs, and Crown servants whose services are lent to local bodies can quite properly be said to be employed in connection with the affairs of the Province, as opposed to the affairs of the Central Government." Similarly Harries, J. in Prabhu Lal Upadhya v. District Board, Agra and another (A I R 1938 All. 276) remarked: "In my view officers of District Boards are public officials and are in a sense Government servants" and that "Officers of a District Board are part of the Machinery of Self‑Government of these Provinces and are in that sense Government Servants or something akin to such servants. In this Court it has been held repeatedly that no valid distinction can be made between Government servants in the true sense of the word and persons in the position of the plaintiff serving local bodies created by statutes for the purposes of Local Government." But, if we may say so with profound respect, we are unable to endorse these sweeping observations. The fact that in some sense a person employed in a local body holds a public office and may on that ground be classified as a public officer, for a limited purpose is not sufficient to constitute him in law a servant of the State within the meaning of the g Constitution. At times he is to be deemed to be a public servant for a specified purpose only to bring him within the rigours of the criminal law under certain conditions. But that does mean that he is a Government servant in the real sense. The learned counsel for the petitioner has also cited before us, Mangal Sain v. The State of Punjab and another (A I R 1952 Pb. 58) decided by the High Court of Punjab (India), in which it was held that the Executive Officer of the Municipal Committee, Ambala City appointed under the Punjab Municipal (Executive Officers) Act, 1931, was holding a civil post, though not "under" the State within the meanings of Article 311 of the Constitution of India corresponding to Article 177 of our present Constitution. The learned counsel ventured to suggest that an Executive Officer similarly serving in Pakistan would nonetheless be holding a civil post "in connection" with the affairs of the Province within the meanings of Article 177.

14. Article 177 falls under Part VIII of the Constitution dealing with "The services of Pakistan". The term "Service of Pakistan" is d.‑fined in Article 242 to mean "any service post or office in connection with the affairs of Centre or of a Province, and includes an All Pakistan Service, any defence service and any other service declared to be a service of Pakistan by or under an Act of the Central Legislature or of a Provincial Legislature, Under Article 176, a person who is a member of an All Pakistan Service, of any of the Defence Services of Pakistan or of a Civil Service of the Centre, or who holds a post connected with defence or a civil post in connection with the affairs of the Centre, shall hold office during the pleasure of the President. Similarly in the Provincial field, a person who is a member of a Civil Service of a Province, or who, except as a member of an All‑Pakistan Service, holds a civil post in connection with the affairs of a Province, shall hold office during the pleasure of the Governor of the Province. Under Article 178, the appointing authority in the case of Central Services and posts is the President or a person authorised by him in this behalf and in the case of the Provincial Services and posts the Governor or a person authorised by him in that behalf. The terms and conditions of service of these employees are prescribed by the rules made by the President or the Governor or by a person authorised by them within their respective sphere according as the case may be. A person who "holds a civil post in connection with the affairs of the Centre or of a Province" within the meanings of Article 177 takes it subject to all those incidents of services. These attributes attached to the "civil post" under the Constitution distinguish it from an ordinary post held in the administration of the statutory corporations and Municipal Committees established under the law. The position of a person employed by the Municipal Committee, like the petitioner, is materially different. A Municipal Committee is constituted under section 8 of the Municipal Administration Ordinance (X of 1960), it functions as a body corporate having a perpetual succession. In the eye of law it is an independent and more or less autonomous entity distinct and separate from the Government. It does not function as department of the Government. Strictly the servants of Municipal Committees are not civil servants. They are subject to the provision contained in Chapter V of the Ordinance under the combined, effect of section 29 of the Ordinance, read with Articles 44 to 47 ran, of the Basic Democracies Order (Presidential order 18 of 1959), pal with the exception of the Secretary and the Principal Officers, the Municipal Committee may, on the prescribed terms and conditions, employ such other servants as are deemed necessary for the efficient performance of its functions under the Ordinance. The appointing authority in the case of the petitioner is the Lahore Municipal Corporation under the Ordinance and not the Governor or any person authorised by him. We are, therefore, of the opinion that the petitioner cannot be cosidered to be holding a civil post in connection with the affairs of the Province within the meanings of Article 177 of the Constitution. In Yusuf Ali Khan v. The Province of the Punjab (P L D 1949 Lah. 219) it was held that the expression "Civil post" was not defined in the Constitution and should be construed in the ordinary dictionary sense. It means an appointment of an officer on the civil side of the administration as distinguished from the military side. In Syed Ghulam Mohl‑ud‑Din v. The Board of Trustees of the Karachi Port Trust and others (P L D 1957 Kar. 482) a Division Bench of this Court found that an employee of the Board of Trustees of the Port of Karachi established under the law could not be regarded as holding a civil post under the Crown in Pakistan. Similarly in another case in Abdul Ghafoor v. Thal Development Authority, Jauharabad (P L D 1958 Lah, 169) this Court has held that a servant of the Thal Development Authority constituted under the Thal Development Act, 1949 was not a member of a civil service of the Crown or did not hold any civil post under the Crown within the meaning of section 240 of the Government of India Act, 1935. This appears to us to be the true legal position.

15. But the learned counsel for the petitioner has strongly relied on another ruling cited before us. In Muhammad Ahsan Khan v. The Government of West Pakistan (P L D 1965 Pesh. 214) at the relevant time, the petitioner was employed as a Traffic Manager under the West Pakistan Road Transport Board constituted under section 43‑A of the Motor Vehicles Act (IV of 1939) and the West Pakistan Road Transport Board Rule, 1958. Under these Rules the Board was empowered to appoint officers and servants working under it and to prescribe their conditions of appointment and service and their pay scales. In the case of officers appointed to posts carrying the initial pay of Rs.250 per month and above the appointments were subject to the prior approval of the West Pakistan Government. As the pay of Muhammad Ahsan Khan was more than Rs.250 per month, his appointment was subject to this provision in the rules. In his case a Division Bench of this Court observed:‑ "Taking the above provisions into consideration it appears to us that it can, with some justification, be argued that the petitioner was, at the material time, a Government servant. In view of the fact that both his appointment and his conditions of service required the prior approval of the Government, he appears to us to be clearly entitled to the same protection as was afforded by Articles 181 to 182 of the 1956‑Constitution to all persons holding civil posts in connection with the affairs of the Province. It would be entirely unreasonable to suppose that after having taken care to ensure that the appointment and terms of service of officers of the Board falling within the scope of clause (1962)1KBD18) of rule 7 of the West Pakistan Road Transport Board Rules, 1959 should be subject to its prior approval, Government would deprive them of that protection. In this connection, it is important to bear in mind that under section 43‑A of the Motor Vehicles Act, a Board was only constituted when Government decided to run transport service itself." Whatever the true legal position under section 43‑A of the Motor Vehicle Act, 1939 and the rules framed there under, it is evident that the attention of the learned Judges deciding that case was not drawn to Muhammad Ali v. Commissioner, Lahore Division, Lahore and others (1962) P S C) in which their Lordships of the Supreme Court cited with approval the following passage from Sharif Hussain v. Deputy Commissioner, Lahore (P L D 1957 Lah. 1060):‑ "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 that obviously subsists between the Committee and the Executive Officer. Apparently the position is that even when Government appoints Executive Officers they do so for the benefit of the Committee who is to be the paymaster." It will not be out of place to refer here to Tamlin v. Hannaford (1950) 1 K B D 18). In England under the Transport Act, 1947, the British Transport Commission, a corporation of public nature, is established and the Minister of Transport is invested with very great powers under the Act to exercise supervision and control over the affairs of the Commissioner. In that connection Denning, L. J. in delivering his judgment observed. "He (the Minister of Transport) is given powers over this corporation which are as great as those possessed by a man who holds all the shares in a private company, subject, how. Ever, as such a man is not, to a duty to account to Parliament for his stewardship. It is the Minister who appoints the directors, the members of the Commission, and fixes their remuneration. They must give him any information he wants; and, lest they should not prove amenable to his suggestions as to the policy they should adopt, he is given power to give them directions of a general nature, in matters which appear to him to affect the national interest, as to which he is the sole Judge, and they are then bound to obey. These are great powers but still we cannot regard the corporation as being his agent, any more than a company is the agent of the share‑holders, or even of a sole share‑holder. In the eye of the law, the corporaration is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the King. It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a Government department nor do its powers fall within the province of Government." We have underlined' the above to bring out its importance.

16. This is equally true of a Municipal Committee established for the purposes of the public within its scope it performs functions of a public nature akin to and connected with the affairs of a Province under the Constitution. The "Functions of Municipal Committee" are enumerated in Part 11, Chapter III of Municipal Administration Ordinance (X of 1960). Section 18 defines the compulsory and optional functions of the Municipal Committee. Subject to the rules and such directions as the Government may from time give and within the limits of the funds at its disposal, a Municipal Committee is bound to under take such of the functions mentioned in detail in Part IV as are required to be undertaken by the Municipal Committee. This includes measures to be adopted by the Municipal Committee in the interest of public Health, Water Supply and Drainage; Building Control; Public Streets; Public Safety; Maintenance of Trees, Parks, Gardens and Forests; Education; Culture; Social Welfare and Development. It is to regulate and control the Municipal administration in the local area under its charge. These are some of the affairs with which a modern State with its emphasis on the welfare of the people is increasingly concerned. In The University of Dacca and another v. Zakir Ahmad (P L D 1965 S C 90) their Lordships of the Supreme Court has held that the University of Dacca set up under section 4 of the Dacca University Ordinance (XXIII of 1961) was performing the functions in the Province of East Pakistan, which are connected with one of the affairs of that Province, namely, education. These observations were made in the context of the language of Article 98 of the Constitution to hold that the University was a person performing functions in connection with the affairs of the Province amenable to the jurisdiction of the High Court, under the article. On this reasoning it cannot be disputed that in this sense a Municipal Committee also performs some of those functions, which are connected with the affairs of a Province. But this is far from holding that as such the servant of a municipal Committee should be regarded as holding a civil post in connection with the affairs N of the Centre or a Province for the purposes of Article 177 of the Constitution. He is primarily a servant of and subordinate to the Municipal Committee. In serving in that capacity he is' directly responsible to the committee to perform its functions for which he is answerable to the Committee. The mere fact that in its turn the municipal Committee may be answerable to Govern ment in certain respects or the affairs entrusted to it are connected with the affairs of welfare state, would at best mean that the servant of the Municipal Committee is performing those functions connected with the affairs of the State in a remoter sense only, not within the contemplation of Articles 176 and 177 of the Constitution. In the recent case of the Chairman, East Pakistan Industrial Development Corportation, Dacca and another v. Rustom Ali and another (P L D 1966 S C 848), the Supreme Court has held that it could not be contended that the safeguards provided for public servants under the Constitution could be availed of as of legal right by the respondent Rustam Ali, who was an employee of a statutory Corporation. The Supreme Court found this in connection with an employee of the East Pakistan Industrial Development Corporation set up under the Provincial Industrial Development Corporation" (East Pakistan) Ordinance (XXXVI of 1962) to promote industrial development in the Province‑an affair with which the State is vitally connected.

17. But before concluding this discussion we have to deal with Wall Muhammad v. General Manager, Electricity Water and Power Development Authority, Lahore (2), cited by the petitioner. In that case a Division Bench of this Court was of the opinion that the Water and Power Development Authority established under the West Pakistan Water and Power Development Authority Act (XXXI of 1958) is a person performing functions in connection with the affairs of the Province of West Pakistan within the mean ings of Article 98 of the Constitution and that the functions of the Government are not necessarily confined to the mere maintenance of law and order, but also extend to the development of economic resources of the country and the Authority is one of the agencies established by the Government to achieving this purpose. In deciding that case the learned Judges apparently proceeded on the assumption that the protection afforded by Article 177 of the Constitution was applicable to the petitioner before them but that he was not entitled to the relief claimed on account of the prohibition contained in clause (b) of the Sub‑Article (P L D 1964 Pesh.167) of the Article 98 of the Constitution as no order could be made in respect of his terms and conditions of service not specified in the Constitution. In this connection their Lordships observed: . . . as both the writ petitions filed by the petitioner Wali Muhammad raise questions relevant to the terms and conditions of his service, but these terms and conditions are not such as per specified in the Constitution, Article 177 of which only provides two guarantees, namely, that a Govern ment servant shall not be removed or dismissed from service or reduced in rank by an authority subordinate to that by which he was appointed and, secondly, that he shall not be removed or dismissed from service or reduced in rank without being given an opportunity to show cause against the proposed action. In the present case, both these contingencies have not yet arisen and, therefore, this Court is not competent to grant him any relief. Both the petitions are liable to dismissal on this short ground alone." At the relevant time Wali Muhammad was serving as Stock Verifier under the Director, Electricity of the Water and Power Development Authority, Lahore. The facts of the case are not sufficiently clear. In our opinion the case of a servant directly employed by the Authority under section 17 of the Act is to be distinguished from that of an employee of the Electricity and Irrigation Departments under the Government whose services have been transferred to the Authority under the first proviso to the section. Under section 17 the `Authority' may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions' on such terms and conditions as it may deem fit. Section 18 further lays down that the `Authority' shall prescribe the procedure for the appointment, and terms and conditions of service of its officers and servants and shall be competent to take disciplinary action against them. They are directly responsible to the Authority in all matters and perform the functions entrusted to them by the Authority. To them Article 177 of the Constitution is not applicable. This view is in line with the Supreme Court decisions discussed above.

18. This brings us back to the other objection of the learned counsel for the respondents to the effect that the present writ petition against the Lahore Municipal Corporation is not competent and that at any rate this is not a fit case to grant the relief to the petitioner against the respondents in the exercise of the discretionary powers vested in us under Article 98 of the Constitution.

19. Article 98 of the Constitution is a wholly new provision and confers a new jurisdiction on the High Courts. It is a "new source of plenary authority" conferred on the High Court. This jurisdiction is comparable to and yet significantly different from the ordinary writ jurisdiction under the common law of England. S. A. Rahman, J. In Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and others (P L D 1966 S C 276), has observed: "the provisions of Article 98 of the Constitution of 1962, though they refer to directions and orders rather than writs, are in direct line of descent from the same jurisdiction and partakes of its character". In dealing with the scope of Article 98, a Full Bench of this Court in Mahboob All Malik v. The Province of West Pakistan (P L D 1963 Lah. 573), remarked: "The conditions of exercise of jurisdiction in relation to various writs have thus become more uniform. As a consequence in some cases the field covered by the earlier writ has become somewhat enlarged; and in others it has become somewhat curtailed." Article 98 of the Constitution so far as it is relevant, is reproduced below: "(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law. (a) on the application of any aggrieved party, makes an order‑ (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (5) In this Article, unless the context otherwise requires‑ "person" includes any body politic or corporate, any authority of or under the control of the Central Government or of a Provincial Government and any Court or tribunal other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Defence Services of Pakistan; The Lahore Municipal Corporation is a statutory Corporation established under the Municipal Administration Ordinance (X of 1960). It is a body corporate and has perpetual succession. It can sue and be sued in its own. name. Therefore on the basis of the reasoning adopted in the University of Dacca and another v. Zakir Ahmad and Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali, we have no hesitation in holding that the Lahore Municipal, Corporation is `a person' within the meanings of Article 98 of the Constitution. It is also a "local authority" within the meanings pl of the Article. The expression `local authority' is not defined in the Constitution, Earl Jowitt in his Dictionary of English Law has observed: "This expression is of modern origin. In the definition clauses of numerous Acts passed during the last hundred years, it is declared to mean, for the purposes of each of those acts, the person or bodies who respectively give effect to the Acts in various area." In section 3(28) of the General Clauses Act, 1897 it has been defined as "a Municipal Committee, District Board, body of borough Commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund." In Ata‑ul‑Haq v. Chairman and Members of the Election Appeal Committee (P L D 1964 Dacca 730), the Court held that the National Bank of Pakistan constituted under Ordinance No. XIX of 1949 is a local authority' within the meaning of Article 98 of the Constitution. But the decision was reversed on appeal by the Supreme Court in the Deputy Managing Director, National Bank of Pakistan and others v. Ata‑ul‑Haq (P L D 1965 S C 201), their Lordships of the Supreme Court it impossible to hold that the National Bank of Pakistan is a "local authority" within the meanings of the Article and observed: "The expression "local authority" has been used in statutory phraseology in the Indian sub‑continent for a great many years and is always understood to mean an authority which is entrusted with the administration of a local fund. Local authorities are bodies exercising within limited territories included in a Province, powers which belong to the Province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self Government, and has power of making bye‑laws, of imposing taxation and of maintaining and administering a local fund. In fact, it is evident from the order in which Article 98 mentions the three tiers of authorities that these are in a descending order of importance, first i.e., the Centre, being the most important, a Province being next in order of importance and a local authority being the last in that order." The Lahore Municipal Corporation established, as it is under the Municipal Administration Ordinance (X of 1960) is charged with all these important functions in the local area within its jurisdiction; it can make bye‑laws; impose taxes and maintains Q a local fund administered by it. Therefore, in our opinion it is in every sense a "local authority" amenable to the jurisdiction of the High Court under Article 98 of the Constitution.

20. But the learned counsel for the respondents has further argued before us that in the circumstances of this case no mandamus or any other order of the like nature ought to be issued against the respondent to compel the restoration of the petitioner to the post held by him under the Municipal Committee. The position in this respect under the Common Law of England, is summed up in Halsbury's Laws of England (Third Edition), Volume II, paragraph 162 as under: "An order of mandamus will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, of which he has been wrongfully dispossessed, provided the office or franchise is of a public nature; as for example to the office of mayor, alderman, recorder, town clerk, burgess or other municipal position, to academicals degrees, or to the fellowship of a college where there is no visotor, or to the offices of parish clerk and sexton." The further instances of the "other municipal position" can be found in para. 877, Volume 24 of the Halsbury's Laws of England (Third Edition). As mentioned there every county council must appoint fit persons to be clerk of the county council. County treasurer, county Medical Officer or officers of health, county surveyor, county Chief Education Officer, Children's Officer necessary for the efficient discharge of its functions. The above authoritative statement of the law in England has been cited with approval in our country by the Supreme Court in a number of cases decided by it. In Lahore Central Cooperative Bank Limited v. Saifullah Shah (P L D 1959 S C 210), the Supreme Court in accepting the appeal of the bank reversed the judgment of the High Court on the ground that the writ was not a proper remedy to issue under the circumstances of the case. The Court observed that mandamus is a discretionary writ. It is not granted as of right and it cannot be issued as a matter of course; so that the Court may refuse the order not only upon merits, but also by reason of the special circumstances of the case. In commenting upon the above from Halsbury the Supreme Court observed:‑ "The superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature arid to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co‑operative Bark. That post was clearly of a contractual nature, falling within the category of employment, and having nothing of the true character of a statutory or corporate office." In that case the Supreme Court has construed the term Statutory Office to mean an office which is by law prescribed in regard to its existence, its tenure or duties. In a later case in Mahboob Elahi and others v. Khan Abdul Rahman Khan (P L D 1960 S C 266), their Lordships of the Supreme Court were pleased to hold that the admission of a duly qualified Director to the Board of Directors of a public company, such as the West Pakistan Steel Corporation Limited, is within, the scope of a writ. No statutory duty was involved in that case but the Supreme Court observed that it was undeniable that a duly qualified Directors and this was a right of great importance to the public, in the field of the operation of public joint stock companies under Company Law". The composition of a Board of Directors of a Company incorporated as a public company, in whose operation the public at large has interest and whose constitution requires to be determined by the wishes of share‑holders, was clearly a matter of great importance to the public. The Supreme Court further observed: "Even upon the basis of the narrow requirements that there should be either a statutory duty involved, or a legal right to be enforced or the performance of a public duty which was attracted by the circumstances, it is easily possible to regard the admission of a duly qualified Director to the Board of Directors of a public company such as the West Punjab Steel Corporation Limited, as being within the scope of a writ." In the same case, in connection with the office of the secretary of the company, the Supreme Court has held that that was not within the principles and practice applying for the issuance of the writ of mandamus. The company was authorised to appoint the Secretary under the terms of its articles of association and the opinion of the Court, it was not within the scope of mandamus to restore him to that office. The law on the subject was again summed up by the Supreme Court in Pakistan and others v. Nasim Ahmad (P L D 1961 S C 445). Emphasising once again, the Court observed that a mandamus will not lie to compel restoration to any and every kind of public office. A mandamus does not lie to restore a Government Servant to office for, even though he may be holding a public office, his office was not of the nature to which restoration can be compelled by resort to this extraordinary remedy. On reference to the above-cited paragraph from Halsbury, the Supreme Court further observed: "Indeed, the authorities cited in Halsbury's Laws of England in support of the proposition of law therein enunciated show that the cases in which the English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus are all cases of offices which are either corporate or elective offices or municipal positions. In England, no Court could possibly compel the restoration to office of any public servant in the service of the Crown, for, all such servants of the Crown, hold office during the pleasure of the Crown, and no Court in England would presume to command the Crown. The authorities cited in Halsbury would also seem to indicate that even fur other offices, the tenure of which is precarious or dependent on the will of another, a mandamus would not lie to compel restoration to such offices. Thus as mentioned in the passage quoted itself a mandamus would not lie to restore a person to a fellowship of a college where there is a visitor of the college, for, the duties of such visitors include the settling of questions relating to the election of fellows of a college." In Faiz Ahmad v. The Registrar Co‑operative Societies, West Pakistan, Lahore and others (P L D 1962 S C 315), the appellant was employed as a clerk in the Pakistan. Central Co‑operative Bank Limited established under the Co‑operative Societies Act, 1912. He applied to the High Court of West Pakistan for the issuance of a writ of certiorari to quash the order of his dismissal from service and for mandamus for his restoration to the service. Relying on Nasim Ahmad's case, the Supreme Court has held that his prayers for the writ was wholly misconceived, for, the office held by him was, by no means, a public office restoration to which could have been ordered by means of a writ of mandamus and that mandamus does not lie for restoration to any and every kind of office, but only to offices which are either corporate or elective offices or municipal positions. The next case, of importance in this connection is reported as the Managing Committee of Co‑operative Model Town Society Limited v. Kh. Muhammad Iqbal (P L D 1963 S C 179). The respondent in that case was the Secretary of the Co‑operative Bank Model Town Society Limited, Lahore. His services were terminated as a result of a resolution passed by the Managing Committee of the Society. He successfully moved the High Court by a writ petition, inter alia, asking for his re‑instatement as the Secretary. The Supreme Court granted the special leave to appeal against the High Court decision expressly to consider as to whether a writ of mandamus would not lie against the society on the ground that it was a "private society performing no public duties." The Court distinguished the case at hand from that of the Central Co operative Bank Limited v. Saifullah Shah concerning the Commercial Manager of the Bank who did not hold a statutory office and observed:‑ "That makes a point of distinction from the present case, which relates to a statutory office, viz., that of Secretary to a Co‑operative Society, and difference may also be found in the circumstances that the Society, in this case exercises administrative functions in a considerable township, viz., Model Town. However, it is not necessary to examine the point further, since the question of direct restoration to office is not involved in the case." In the recent case of Zainul Abidin v. Multan Central Co‑operative Bank Limited, Multan (P L D 1966 S C 445), the appellant was working as an Accountant under the bank and the Supreme Court found that writ was not a proper remedy open to the employee wrongfully dismissed from the service. 1n this connection the Court once again referred to the law in England and observed: " . . . . a writ of mandamus, as has been pointed out in more than one case by this Court, `will lie to compel the restoration of a person to an office or franchise, whether spiritual or temporal, which he has been wrongfully dispossessed, provided such officer or franchise is of a public nature' and not for restoration to any and every kind of office. The English authorities on the subject appear to indicate that this writ has been utilised only for ordering restoration to offices, which are either corporate or elective offices or municipal positions. Vide Pakistan v. Naseem Ahmad (2) and Halsbury's Laws of England, Vol. II, paragraph 162, 3rd Edition. The office held by the appellant as Accountant of a Co‑operative Bank does not fall within any of these categories." The latest authority in this connection is that of the Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another, in which the Supreme Court has held that the writ was not a proper remedy in a case of an employee of a statutory corporation like the East Pakistan Industrial Development Corporation. The Court repeated the principles enunciated in the Lahore Central Co‑operative Bank Limited v. Pir Saif Ullah Shah and while invoking the general law governing the relations between master and servant, vacated the writ issued by the High Court in favour of the employee against the Corporation.

21. To sum up the discussion, in this country, on the language of Article 98 of the Constitution, as a matter of construction only a High Court of a Province may, provided the other conditions are fulfilled, make an order directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which lie is not permitted by law to do, or to do that which he is required by law to do; or declaring that any act done or proceeding taken in the Province by such a persona or local authority has been done or taken without lawful authority and is of no legal effect. The powers thus conferred on the High Court are very wide indeed; in case the functionaries under this Article have acted or are likely to act in excess of the law or failed to act as required by the law, the High Court may intervene on the application of an aggrieved party. But the discretion thus conferred on the High Court can not be exercised almost as a matter of course. The High Court acts in aid of the law and not to hamper the smooth working of the agencies established by law or to set up any hegemony in itself. It is to promote the rule of law of the land and check serious inroads into it by those in authority. The superior Courts have always exercised this jurisdiction with restraint and used the discretion vested in them in consonance with the well known and well understood principles recognised under the Common Law of England in issuing the appropriate writs. Those are the guide lines to be borne in mind in issuing appropriate orders or writs under Article 98 of the Constitution. The writ of mandamus is issued by a Superior Court to compel the performance of a statutory duty imposed on a public functionary. It is to direct a person to do something pertaining to his office, which is in the nature of a public duty. It does not lie to compel the restoration of a person to any and every office or position but to an office or franchise of a legal or public nature unless the party has another more appropriate remedy. To distinguish them from private corporations created for purely private gains, the Supreme Court and this Court issued the writs in suitable cases to uphold the admission of a duly qualified director to the Board of Directors of the West Pakistan Steel Corporation Limited, a public company formed under the Companies Law and to restore Secretary of the Model Town Society, Lahore (a private society registered under the Societies Act), exercising administrative functions in a considerable township, to the statutory office held by him. But in the case of the East Pakistan Industrial Development Corporation the Supreme Court vacated the writ granted to its employee by the High Court on the main consideration that the general principle of master and servant was applicable to the case.

22. In the instant case before us to begin with on 1st April 1949 Dr. Abdul Hafeez, petitioner was appointed as the Sub‑Assistant Medical Officer of Health by the City of Lahore Corporation. Afterwards he rose to become the Assistant Medical Officer of Health there in February 1956. He continued to serve in that capacity until after the City of Lahore Corporation was superseded by the Lahore Municipal Committee after the promulgation of the Municipal Administration Ordinance (X of 1960). Under section 39(1) of the City of Lahore Corporation Act XV of 1941 (before it was repealed by Ordinance X of 1960), the Corporation was bound to appoint fit and proper persons to the Chief Engineer, Medical Officer of Health, Chief Accountant and Secretary on suitable terms. Subsection (21 of the section 39 of the same Act provided that the Corporation may also appoint a Chief Medical Officer, Additional and Assistant Medical Officer of Health. As the Assistant Medical Officer of Health the petitioner was holding a statutory office under the City of Lahore Corporation. After the repeal of the Act, the appointment of the petitioner as the Assistant Medical Officer of Health was continued on the same terms and conditions under the Lahore Municipal Committee by virtue of the provisions in section 4(2) of the Municipal Administration Ordinance (X of 1960). In his capacity as the Assistant Medical Officer of Health, the petitioner was performing duties of public nature and importance. His age of compulsory retirement was raised to 60 years by rule 3 of the West Pakistan Local Councils and Municipal Committees Servant (Further Usefulness in Service) Rules, 1963. He was born on 19‑3‑1910 and has yet to attain the age of 60 years on 18th of March 1970. The tenure of the office held by him was not a precarious one and is secured by the rules. As discussed in the earlier portion of this judgment the impugned order for his compulsory retirement on 29th July 1964 was not passed in accordance with the rules. The response No. 4 is exercising powers and discharging municipal functions ever considerable area within the limits of Lahore Municipal Corporation. In these circumstances, this appears to us to be a fit case to grant the declaration to the petitioner that the order dated 29th July 1964, for the compulsory retirement of the petitioner is against law and ineffective.

23. We are now left to examine the last objection raised before us by Qazi Muhammad Ashraf, Advocate for the respondents. Under Article 98 of the Constitution, this Court has jurisdiction to entertain this petition only "if it is satisfied that no other adequate remedy is provided by law" in this respect to the petitioner. If the High Court finds that the law has provided another adequate remedy open to the petitioner, it has no jurisdiction to grant any relief to him under the Article. The petition is competent only in case the machinery under the ordinary legal process does not provide for an adequate remedy to rectify the wrong done to the petitioner. The recourse to the application under Article 98 is available "where the law has established no specific remedy and where in justice and good Government there ought to be one." The remedy available under the law must be able to accomplish the same purpose sought to be achieved through a petition under Article

98. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law T must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under this Article. This depends on the circumstances of each case. It is unnecessary to discuss the large number of authorities cited before us on both sides in. this connection. We would, however, like to refer to two decided cases to bring out the governing principles. The first one is the case of Mahboob Ali Malik v. The Province of West Pakistan and another decided by a full bench of five Judges of this Court. In this case it was held that under Article 98 the adequacy of the remedy must be judged in relation to three separate considerations: (i) the nature and extent of the relief; (ii) the appropriate time necessary to secure it and (iii) the conditions on which it would be available‑particularly the conditions relating to the expense and inconvenience involved in obtaining it. If the relief that may be obtained under the other remedy is of a different nature or of a lesser magnitude than the relief that in the circumstances of the case, ought to be given, that remedy will not be adequate to the required relief. The speed with which the relief would be available under the other remedy as compared with that under Article 98 must also be borne in mind. The learned Judges of the Full Bench have laid down certain practical tests to Judge if the alternative remedy in relation to the facts of a given case is adequate or not. The other case in this connection is of the Anjuman‑e‑Ahmadia, Sargodha v. The Deputy Commissioner, Sargodha and another (P L D 1966 S C 639). In that case the Supreme Court observed: "Once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and efficacious. The policy underlying the introduction of this form of extraordinary remedy is, `to prevent disorder from a failure of justice and defect of police' in an inexpensive, expeditious and effective manner `where the law has established no specific remedy and where in justice and good Government there ought to be one'. In a case where this remedy is in other respects warranted it is rarely that the Courts in England have considered an action in law to be such an adequate alternative remedy as to refuse the writ unless complicated question of fact have to be determined, or a question of title to land is involved or the remedy sought is, in effect, for the recovery of damage." The Supreme Court has further added: "When the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub‑Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that the other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article." The facts in that case were that the Anjuman got possession of the land in dispute in pursuance to a grant made by the Government, which was afterwards cancelled. The Anjuman challenged the cancellation in the High Court by means of a petition under Article

98. The High, Court dismissed the petition in limine on the ground that adequate alternative remedy by way of a civil suit was available to the Anjuman. But in the light of these learned observations the Supreme Court was of the opinion that what the appellant really wanted was the performance of a public duty, namely, that the authorities seeking to cancel the grant should proceed in accordance with law, the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made. In the opinion of the Supreme Court the remedy provided by the suit, if brought by the Anjuman for the purpose would not be adequate, for all that the appellant asked was the performance of a public duty by the respondent in accordance with law.

23. On approaching the present case before us from this angle the conclusion is almost irresistible that all that the petitioner is asking for is that the "appropriate authority" and the "Review Committee" established under the West Pakistan Local Councils and Municipal Committees Servants (Further Usefulness in Services) Rules, 1963, should have acted in accordance with law by which they were bound in the discharge of the public duties. These public bodies were established under the rules which they had to follow. These special rules have not provided for any alternative remedy in this case for the petitioner and it is a question if under the circumstances a suit for the specific relief would be available to him. We have expressed no opinion on this. But even if the alternative remedy by way of a suit is available to the petitioner; we are sure that it is by no means adequate, equally efficacious, less expensive and convenient. Therefore, considering all the facts and circumstances of this case at length we are of the opinion that this petition under Article 98 of the Constitution is competent and there is no force in all the various objections raised against it by the respondents.

25. For the reasons discussed above we accept this petition, and declare that the impugned order dated 29th July 1964 passed by the Lahore Municipal Committee for the compulsory retirement of the petitioner is against law and ineffective. There shall be no order as to the costs under the circumstances of the case. K. B. A. Petition accepted.