' KHALIL-UR-REHMAN KHAN, J.-- This judgment shall dispose of two Intra-Court Appeals (I.-C.As. Nos.
192 and 210 of 1979) which are directed against the judgment, dated 25th June, 1979 passed by a learned Single Judge of this Court in Writ Petition No,5223 of 1978, where under the impugned order of transfer of Nasir Ahmad petitioner (now respondent) was declared to be without lawful authority, illegal and of no legal effect. The learned Judge in para. 30 of the judgment, with reference to the question whether the transfer made was mala fide and for extraneous considerations observed that the factual situation obtaining in this case amply proved that there was an anxiety on the part of the respondents in the writ petition to oust the writ petitioner from administration and see that he is not able to come back to it. Then in para. 32 it is observed that "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". The constitutional petition was accepted and the costs were awarded as against all the respondents.
' The Federation of Pakistan through the then Federal Minister for Information and Broadcasting, Government of Pakistan, assailed this judgment by filing Intra-Court Appeal No, 210 of 1979 whereas Chairman Pakistan Broadcasting Corporation, Mr. Q.A. Saeed Director-General and Mr. A.A. Hanafi, the then Controller Personnel and Administration of the Pakistan Broadcasting Corporation filed the other appeal i.e, I.-C.A. No, 192 of 1979.
2. Mr. Nasir Ahmad, respondent in these appeals was admittedly reinstated to his post in compliance with the impugned judgment but was retired from service by the Chairman Pakistan Broadcasting Corporation with immediate effect in exercise of the powers conferred by clause (i) of Sub-Regulation (1) of Regulation 3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980. This order was conveyed to Mr.Nasir Ahmad, respondent No,1 vide letter, dated 27-12-1981.
3. In view of the retirement of respondent No, 1, the learned Deputy Attorney-General, appearing for the appellants, conceded that the appeals as regards the declaration that the impugned orders are illegal and without lawful authority have been rendered infructuous. He, however, added that as no valid basis, factual or legal, exists for making the observations contained in paras'. 30 and 32, the said paras. May be ordered to be expunged, or that it be held that the said observations are unwarranted and unfounded. He further, argued that there was no real need to go into the alleged mala fides of the appellants as the constitutional petition could be disposed of after arriving at the finding which finding in fact was recorded that the transfer of respondent No,1 as Controller from one department to another by the Director-General was without lawful authority. It was pointed out by the learned Deputy Attorney-General, referring to para. 4 and para. 11 (xi), (xvii) and (xviii) of the constitutional petition, that an allegation couched in general terms was leveled against senior authorities without particularising any authority and without giving particulars on the basis of which the allegations of male fides were being founded. He then referred to para. 30 of the judgment to point out that all the acts enumerated in this para. Were relatable to the Director- General alone and, as such, the observations that there was an anxiety on the part of the respondents (i.e, all the respondents) to oust the writ petitioner from administration that he is not able to come back to it, were not justified. It was urged that no act or order of the Minister or Mr. A.A.
Hanafi was referred to in the judgment or relied upon by the counsel for the respondent justifying the making of the objected to observations. As regards the Chairman Pakistan Broadcasting Corporation, it was submitted that he was appointed as Chairman on 24th of June, 1978 w.e.f, 8th of June, 1978, and there being no material available on record to support the allegation of mala fide against him, the objected to observations cannot be made as against the Chairman Pakistan Broadcasting Corporation. In nutshell, he argued that the observations cannot justifiably be made against the then Federal Minister, the Chairman and Mr. A.A. Hanafi. As regards Mr. Q.A. Saeed, appellant, who was respondent No, 3 in the constitutional petition, it was submitted that neither any statute nor any provision was pointed out in the judgment while making the observation that the reasons given were extraneous to "The Act" and that, in any case, these observations cannot legitimately be made on the basis of the facts noted in the judgment.
4. Ch. Muhammad Farooq counsel for Mr. Nasir Ahmad, respondent, frankly conceded that there is nothing in the judgment or the record of the constitutional petition to apply the observations made to the then Federal Minister and Mr. A.A. Hanafi. He stated that Mr. Hanafi was at best the beneficiary of the impugned orders, As regards the Chairman, he pointed out that in the note referred to in para. 23 of the judgment, which was produced by the appellants themselves before the learned Single Judge, it was stated that the Chairman had agreed that there would be only one post of Controller in the Administration Department instead of two and that the Chairman had also accorded approval to the promotion of Mr. Hanafi as Director Personnel and Administration. He also referred to another office-note wherein it is stated that it was decided in a meeting between the Director-General and the Chairman P.B.C./Secretary I&B to post Mr. Nasir Ahmad, respondent, as Controller in the Audience Research Section. He, however, conceded that there is nothing on record to show as to how and on what basis the approval of the Chairman was obtained. The Chairman, as noted above, took over the charge of the office in the month of June, 1978, and the noting referred to is of the months of August and September, 1978. Learned counsel for respondent No,1 in view of the above, was not able to urge that material relied upon the impugned judgment was sufficient to support the observations as against the Chairman. Learned counsel further stated that the respondent will not claim the costs awarded to him under the impugned judgment and so the question of costs awarded need not be gone into.
5. From the above, it is apparent that the legality of the declaration made is no longer in dispute as admittedly the appeals by the own act of one of the appellants have been rendered infructuous.
The only point urged during arguments was that the objected to observations neither in law nor in propriety could reasonably be made against the appellants. We have given serious consideration to the respective submissions of the parties. In this respect it is pertinent to note that in the rejoinder filed, the allegations of mala fides were restricted to Mr. Q.A. Saeed who was respondent No, 3 in the constitutional petition. He was particularly named in the rejoinder and the acts taken by him were cited and documents in support of the said acts are available on record, having been produced by respondent No,1 as well as by the appellants themselves. However, the admitted position is that no material is available on record to justify the making of adverse observations as against the Federal Minister, the Chairman and Mr. Hanafi. In the impugned judgment, the acts, orders and the conduct of the Director-General were noted and referred to for making the observations objected to and we are of the view that these observations were really intended to apply to the Director-General. The word "respondents" used in para. 30 has to be, in the circumstances, restricted to respondent No, 3, the Director-General. As regards Mr. Q.A. Saeed, the Director-General, we are of the considered view that the observations made fully apply to him and that these observations are also fully justified in view of the material available on record. These observations are the inferences drawn on the basis of the record and these inferences could reasonably and fairly be drawn against the Director-General, respondent No, 3, in the writ petition.
6. The submission that the judgment could be delivered without going into the question of mala fides, as the learned Judge had held that the impugned order was without lawful authority, is without merit. The petitioner in the writ petition leveled these allegations and respondent No, 3 was given full opportunity to defend himself. In fact, even the noting part of the files was produced by the counsel for the Director-General. The learned Judge cited at least eight instances/orders for drawing the inference that there was anxiety on the part of the Director-General to oust the petitioner (now respondent No,1) from the administration. From the facts noted, this inference could reasonably be drawn. Moreover, the reasons given for taking the impugned actions and passing the impugned orders were rightly held to be neither germane to the good administration nor conducive to the advancement of the public good and, as such, these were rightly held to be extraneous to the Act. The submission of the learned Deputy Attorney-General that the observation "that the reasons given were extraneous to the Act were uncalled for" has no merit. This argument proceeds on the basis that no provision of the Act has been referred to by the learned Single Judge which was held to have been invoked for extraneous reason. Learned Deputy Attorney-General while making this submission failed to notice that this observation was made to emphasize that the power of transfer, management and control available under the Act could not be used for achieving the purpose of ousting the respondent from his permanent department. This objective was held to be extraneous to the Act.
7. The net result of the above discussion is that the objected to observations were rightly and justifiably made against Mr. Q.A. Saeed Director-General, appellant No, 2 in Intra-Court Appeal No, 192 of 1979. These observations, however, do not apply to the other appellants. These appeals have otherwise become infructuous and the same are disposed of accordingly, with the observations made above. The parties are left to bear their own costs throughout.