SARDAR MUHAMMAD IQBAL, J.- The petitioner was appointed as an Additional Legal Adviser of the Municipal Corporation of the City of Lahore by the order of the Chairman contained in his letter dated the 17th of November 1965. He was subsequently appointed as Legal Adviser of the Corporation with effect from the 5th of July 1969 (vide Annex `D'). The Administrator of the Corporation of the City of Lahore by his letter dated the 10th of May 1970 informed him in the following terms:- "As directed by Government under their Memorandum No. SOIV-LMC-3 (26)/69, dated the 9th November 1970, your services will stand terminated on the expiry of period of notice of 90 days from the date of issue of this notice in accordance with the provisions of section 3 of the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964."
The petitioner has challenged the order through this petition tinder Article 98 of the Constitution of the Islamic Republic of Pak., 1962, read with the Provisional Constitution Order, 1969.
2. The Writ Petition was filed only against the Adminis--trator and the Provincial Government. Mr. Muhammad Saeed,. Mr. Muhammad Akbar and Mr. Maqbool Ahmad, the newly appointed Legal Advisers were, at their request, impleaded as respondents.
3. It was contended by the learned counsel for the petitioner that the impugned order had been passed without complying with the provisions contained in Article 177 of the Constitution of the Islamic Republic of Pakistan, 1962, as the petitioner was not afforded an opportunity to show cause against the proposed action. We find the contention untenable. Article 177 applies to a person who is a member of an All Pakistan Service or of a Civil Service of the Centre or of a Province or who holds S civil post in connection with the affairs of the Centre or a Province. The petitioner does not fall under any of these categories. The Municipal Corporation doubtless acts in connection with the affairs of a Province, but its employees are not the holders of civil posts in connection with the affairs of the Province, because their activities do not fall within the sphere of the Province and their services are also not under its direction and control. A Municipal Committee is constituted under section 8 of the Municipal Administration Ordinance of 1960, and is a body 4 corporate and exercising control on the activities of its employees who perform functions subject to its direction and control. The fact that the Government may have some control on the Municipal Committee in respect of some broad lines of policy will make no difference, because it does not function as a Govern--ment Department, and as an employer it had an entity of its own distinct from that of the Government, and its employee are rot, therefore the employees of the Government benefit by the guarantees and safeguards provided in Article 177 of the Con--stitution. In Shujauddin Ahmad v. Oil & Gas Development Corporation (1971 SCMR 566) it was held: "The consistent view of this Court hitherto fore has been that the employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case.
In Muhammad Ali v. Commissioner, Lahore Division (1962 P SCR 173) while dealing with section 240 of the Government of India Act, 1935 and Article 180 of the Constitution of 1956, which were similar to Article 177 of the 1962 Constitution, it was observed by Fazal-e---Akbar, J: "It cannot, in our opinion, be urged that a Secretary of the Municipal Committee holds a civil post under the State within the meaning of section 240 of the Government of India Act, 1935 and Art. 180 of the late Constitution. He also cannot claim safeguards provided for public servants under the Govern-- ment of India Act, 1935 or the late Constitution". The same view was taken in Abdul Hafeez v.
Chairman, Municipal Corporation, Lahore (PLD 1, 67 Lab 1251), A. George v. Pakistan International Airlines Corporation (PLD 1971 Lab. 748), Ahmad Hussain Qureshi v. Chairman, WAPDA (PLD 1967 Lab. 796) and Abdus Salam v. Chairman, WAPDA (1970 SCMR 40).
4. On behalf of the respondents, an objection to the com--petency of the Writ Petition itself was raised on the ground that the relationship of the petitioner and the Corporation was that of a master and a servant, and the remedy of the petitioner for a wrongful removal from service was by way of damages. There distinction in cases of the employees of a statutory body acting in connection with the affairs of the Central or a Provincial Government (like Universities, Boards of Education, Water and Power Development Authority etc.), whose terms and conditions are regulated by a statute or the statutory rules, and those employees who work under contracts, and have thus the contractual terms and conditions to govern them. An employee of the latter category cannot enforce his rights arising from the contract through a Writ Petition. His remedy is by way of a suit under the ordinary law of master and servant as held in Secretary, East Pakistan Industrial Development Corporation v. Muhammad Sirajul Haq (1970 SCMR 398). However, it' an employee of such a corporate body can show that an order dismissing or removing him from service or any other order adversely affecting his rights, has been passed in violation of a statute or the rules having the force of law, he can, doubtless, invoke the jurisdiction of the High Court under Article 98-See Muhammad Din v. The Corporation of the City, of Lahore (PLD 1960 Lab. 242), Dr. Abdul Hafiz v. Chairman, Municipal Corporation, Lahore (PLD 1967 Lah. 1251) and M. S. Furukhi v. The Province of West Pakistan (PLD 1970 Lah. 195).
5. On behalf of the petitioner it was contended that he had been appointed by the Municipal Corporation in the exercise of its powers under section 29 of the Municipal Administration Ordinance of 1960, read with Article 45 of the Basic Democracies Order, 1959; that the appointment was made with the previous approval of the Government as was required under section 3 of the West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965; that under section 4 of the 1965-Ordinance the Government had the power to remove or dispense with the services of any Legal Adviser; that with the repeal of the said Ordinance with effect from the 22nd of November 1969 by the West Pakistan Statutory Bodies (Appoint--ment and Removal of Legal Advisers) (Repeal) Ordinance, 1969, the power of the Government to remove a Legal Adviser under the repealed Ordinance came to an end; that the power of removal remained vested where it was under the law; and that the petitioner could be removed only in accordance with the pro-- visions contained in clause (4) of Article 45 of the Basic Demo--cracies Order, 1959, by the Administrator, but since he did not .Do so and acted on the behest of the Government the impugned order of termination of the petitioner's services is illegal. It is also contended that the petitioner's services could not be terminated by a notice under rule 3 of the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964.
6. The position taken up by the Provincial Government in the written statement was that the Provincial Government had not removed the petitioner and that it was the Administrator himself who had ordered his removal. The learned Advocate---General also contended that the Legal Advisers were appointed under Ordinance XXXII of 1965 and that with the repeal of the Ordinance the petitioner ipso facto ceased to be the Legal Adviser; that at any rate after the repeal his appointment remained subject to removal by the Government as provided by section 4 of the Ordinance; that the appointment of the petitioner was not under Article 45 of the 1959-Order read with section 29 of the 1960 Ordinance; and that, in the alternative, if the appointment was under the said provisions, it was subject to the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964, and the Government being the prescribed authority was competent to remove the petitioner.
It was also contended that the Govern--ment could, in the exercise of its powers under section III of the Municipal Administration Ordinance, give the direction, like the one under consideration, to the Administrator to remove the Legal Advisers.
On behalf of the other respondents, it was argued that the Municipal Corporation had been superseded by the Government in the exercise of its powers under section 112 of the Ordinance and the Government, therefore, alone was competent to pass the order of removal, and not the Administrator who was only one of its officers employed for carrying out the business of the Corporation under its directions. It was submitted on their behalf that the direction given to the Administrator was, in fact, an order of removal by the Government.
7. In view of the conflicting positions taken up by the parties, it became necessary to know as to who passed the order of removal of the petitioner. Government's case in the written statement is that it did not pass the order, bat instead it was made by the Administrator. The petitioner had unequivocally alleged that the Administrator did not want to remove any of the Legal Advisers and, therefore, passed no order of their removal. The Advocate-General, in the circumstances, was asked by us to contact the Administrator to find out from him if he had passed the order in question. He, after taking instructions from him, stated that the Administrator had not passed the order of removal of the petitioner, and that he only communicated to him the decision of the Government. Thus, there is neither the order of the Government nor that of the Administrator removing the petitioner from service, with the result that he continues in law to hold the office of the Legal Adviser.
8. The action against the petitioner is purported to have been taken under rule 3 of the West Pakistan Municipal Commit--tees (Legal Advisers) Rules, 1964, rule 3 of which reads as follows:- "3. Appointment of Legal Adviser and legal practitioner.-Not--withstanding anything to the contrary contained in any rules, by-laws or terms and conditions governing the employment of Legal Advisers of Municipal Committees, any appointment or employment of a Legal Adviser made by or on behalf of a Municipal Committee, and subsisting immediately before the coming into force of these rules, unless approved by Govern--ment within three months of the enforcement of these rules shall, subject to the other provisions of this rule, be deemed to have been terminated, on the expiry of the said period of three months. Provided that where such rules, by-laws or terms and conditions of employment provide for the giving of notice for the termination of employment, such notice shall be given on the expiry of the said period of three months, and the appointment shall be deemed to continue during the said period of notice Provided further that where such rules, by- laws or terms and conditions of employment do not provide for the giving of any notice for the termination of employment, a notice shall be served, on the expiry of the said period of three months, on the person whose employment is to be terminated, requiring him to show cause within a period of fifteen days why his employment should not be terminated, and any cause to contrary shown by such person shall be taken into consideration before terminating his service."
It manifestly applied to the Legal Advisers who had been appointed before the said Rules came into force, and did not provide for taking any action against a Legal Adviser as may be appointed under the Rules or after the Rules came into force. The impugned action, if it was taken under the Rules of 1964, was without jurisdiction.
9. However, we may deal with the different contentions raised by the parties.
The contention of the learned Advocate-General is that the petitioner was appointed by the Corporation with the prior approval of the Government as required under section 3 of Ordinance XXXII of 1965, and with its repeal in 1969 the appointment ipso facto came to an end. It needs to be deter--mined whether the appointment of the petitioner was by the Municipal Corporation or by the Government under the Ordi--nance of 1965. If the appointment was made under the latter Ordinance his appointment after the repeal in 1969, ipso facto came to an end. The repeal of an Act has the necessary consequence of terminating the appointments made under that Act unless such appointments are specifically saved. If on the other hand, the appointment was under the Municipal Administration Ordinance and the West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965, only provided for some conditions to be observed before the appointment could be made, thin the appointment remained operative notwithstanding the repeal.
10. The West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965, was enforced by a Gazette Notification dated the 16th of October 1905. The object of the Ordinance was to provide for the control and supervision by Government over the appointment and engagement of Legal Advisers and Legal Practitioners by statutory bodies and their removal. It was provided in section 3: "Notwith--standing anything to the contrary contained in any law, rules or by-laws for the time being in force, no statutory body shall (a) appoint any person as its legal adviser save with the prior approval of Government . . . " It leaves no scope for doubt that the appointment of a Legal Adviser was n t to be made by the Government but by the statutory body, which had to obtain only the prior approval of Government. The position further becomes crystallised by subsection (2) of section 3 which says "Any appointment or engagement made in contravention of subsection (1) shall be of no effect and shall not entitle the person so appointed or engaged to the payment, remuneration, fee or allowance." The Legislature was conscious that the statutory body had the power to appoint and, therefore, to re-emphasise that the prior approval of the Government was mandatory and not directory, enacted subsection (2). Thus the Ordinance provides only for a prior approval of the Government before the appointment of Legal Advisers and not for their appointment. It applies to all statutory bodies, e.g. The Universi--ties, National Bank of Pakistan, State Bank of Pakistan, Water and power Development Authority, Pakistan Industrial Development Corporations, Agricultural Development Corporations etc. The statutory bodies are governed by relevant statutes applicable to them and the rules made thereunder in the appointment of their Legal Advisers. The Ordinance did not denude them o their power but they could exercise the power in future only subject to the condition that they bad to obtain the approval of the Government. See Mirfin v. Artwood ((1869) 4 Q B D 33). In Qamar All v. State (PLD 1965 SC 50) it was held that the power of appointment, notwith--standing the fact that the appointment was to be approved by the Deputy Inspector-General of Police remained vested in the Superintendent of Police alone. Repelling the contention that in such cases the appointment should be deemed both by the Superintendent of Police and the Deputy Inspector-General of Police for which reliance was placed on Muhammad Afzal Khan v. Superintendent of Police, Montgomery (PLD 1961 Lab. 808) it was observed: "If, however, the ruling was intended to lay down that in circumstances similar to those prevailing under the relevant rules, in this case, the prior approval of a candidate for promotion by the higher officer, entailed the consequence that the higher officer also became part of the appointing authority, then we must respectfully dissent from that view. The position of the higher authority in the present case seems to be more akin to that of a Public Service Commission who has to make selection of suitable candidates for appointment to a post but the power of appointment is to be exercised by the competent authority or by Government." Same view was taken in Abdur Rashid Abbasi v. Superintendent of Police (PLD 1967 Lab. 1093).
11. The power to make appointment of a Legal Adviser thus g remained with the Municipal Corporation. We may, therefore) now examine the relevant provisions of law for the appointment of the employees or servants of the Corporation, and also whether a Legal Adviser is its employee. It is provided in section 29 of the Municipal Administration Ordinance, 1960, that the provisions of Chapter VIII of Part II of the Basic Democracies Order, 1959, "Shall mutatis mutandis apply in relation to the servants of Municipal Committees as they apply in relation to the servants of local councils as if the said provisions had been enacted in this Ordinance, and (a) any reference to a local council were a reference to a Municipal Committee; (b) any reference to the Controlling authority were a reference to the Controlling Authority under this Ordinance: (c) any reference to the Order were a reference to this Ordinance; and (d) any reference to Secretary included a reference to chief officer." Article 45 of the Order, therefore, by making the necessary adaptations, as provided in section 29 of the Ordinance, will read as under:- "45. Servants of Municipal Committees.-(1) The prescribed authority may, on the prescribed terms and conditions, appoint a Secretary and one or more Principal Officers to be the servants of a Municipal Committee who shall perform such functions as are assigned to them in relation to such Municipal Committee by or under this Ordinance.
(2) A Municipal Committee may, and if so required by the prescribed authority shall, on the prescribed terms and condi--tions, employ such other servants as are deemed necessary for the efficient performance of its functions under this Ordinance.
(3) If, in the opinion of the prescribed authority the number of servants employed by a Municipal Committee under clause (2), or the remuneration fixed for any of them, is excessive, the Municipal Committee shall, on being required by the prescribed authority to do so, reduce the number of its servants or the remuneration of any of them, as the case may be.
(4) Subject to the provisions of this Ordinance and the rules-
(a) the prescribed authority may suspend, remove, dismiss, or otherwise punish any person appointed under clause (1) and
(b) the Municipal Committee may suspend, remove, dismiss or otherwise punish any person appointed under clause (2).
(5) The prescribed authority may transfer any of the persons appointed under clause (1) from one Municipal Committee to another Municipal Committee within its jurisdiction."
The Legal Adviser is not a Principal Officer because he is not included in rule 2 of the Municipal Committees (Principe Officers) Rules, 1962, except for the Karachi Municipal Corpora--tion. Clause
(1) of Article 45 of the Order is, therefore, not applicable to the petitioner. His appointment, in the circumstances, falls under clause (2) of the said Article under which the Municipal Committee could employ him. Under sub clause (a) of clause (4) of Article 45 ibid the prescribed authority p can suspend, remove, dismiss, or otherwise punish any person ` appointed under clause (1), and since clause (1) was not attracted to the Legal Advisers, the prescribed authority could not, in the exercise of the said power, remove the Legal Advisers. It is only the Municipal Committee under clause (b) of clause (4) which could suspend, remove, dismiss or otherwise punish the Legal Advisers who were appointed under clause (2). However, under clause (3) of Article 45 the prescribed authority may reduce the number of servants employed by a Municipal Committee under clause (2) and also reduce the remuneration fixed for any of them. "Prescribed authority" as defined in the West Pakistan Servants of Local Councils and Municipal Committees (Prescribed Authority and Prescribed Terms and Conditions) Rules, 1.965, means "in the case of Principal Officers not included in the Local Councils Service, Government where the post corresponds to a gazetted post in Government service, and in other cases the Controlling Authority". The prescribed authority in the case of the petitioner was, therefore, the Controlling Authority, who alone could reduce the number of Legal Advisers or reduce their remuneration. Clause (1) of section 3 of the Ordinance defines "Controlling Authority" to mean "in the case of such Municipal Committees or class of Municipal Committees as the Government may, from time to time, by notification in the official Gazette, specify in this behalf, the Government and, in all other cases, the Commis--sioner."
The Government of West Pakistan by its Notification No SCH(L)/1-15/60, dated the 1st of May 1960, specified, amongst others, the Municipal Committee of Lahore in respect of which the Provincial Government was to be the Controlling Authority. By another Notification No. E&A (HWLOG)--13/20- 60, dated the 31st of December 1960, the Provincial Government notified itself to be the Controlling Authority in respect of Municipal Committees of Lahore and Rawalpindi only. Finally, by a Notification No. SOI(L)-17-A-60, dated the 24th of November 1962, the Government ceased to be the Controlling Authority even in respect of these Municipal Committees and the Commissioners of the respective Divisions thereby became the Controlling authorities in respect of the two Municipal Committees. Thus, at the relevant time when the petitioner was appointed, or the impugned order was passed, it was only the Commissioner who could exercise the powers under clause (2) of Article 45 of the Order requiring the Municipal Committee to employ certain persons, or under clause (31 to reduce the number or remuneration of the servants appointed by the Committee.
12. Under clause (2) of Article 45 of the Order, a Municipal Committee could appoint the Legal Advisers on the prescribed terms and conditions. The word "prescribed" has been defined in clause (321 of section 3 of the Ordinance to mean as "pre--scribed by rules made under this Ordinance. "
In the exer--cise of the powers conferred by section 29, read with sec--tion 121 of the Ordinance, the Governor of West Pakistan made the West Pakistan Municipal Committees (Legal Advisers)
Rules, 1964, under rule 2 whereof no person could be "appointed by the Municipal Committee as its Legal Adviser on whole time or part time basis, save with the prior approval of Government and subject to such terms and conditions as may be specified in each case by Government". Under rule 4 of the said Rules a Municipal Committee could maintain a list of approved legal practitioners to whom cases on behalf of the Municipal Committee were to be entrusted from time to time and no legal practitioner could be brought on such a list nor his name could be removed from it except with the previous approval of the Government. Rule 4 does not apply to the petitioner's case because he was the Legal Adviser and not a person on the approved list of legal practitioners.
Under rule 5 a Municipal Committee was required to forward to Government every quarter a statement showing the progress of cases entrusted by it to its Legal Adviser and any legal practi-- tioner under these rules. There is no provision in the Rules of 1964 for the removal of the Legal Advisers. It may be for the reason that there was a specific provision contained in clause (4) of Article 45 of the Order under which the Committee could remove its employees, and also for the reason that appointments under rule 2 could be made subject to such terms and conditions as were specified in each case by the Government. In the absence of any condition so provided by the Government, the only authority which could remove a Legal Adviser was the Municipal Committee, under clause (4), subject, of course, to provisions of any rules which might have been made in that behalf.
13. It is contended by the learned Advocate-General that the petitioner was not a Municipal servant or employee under the Ordinance but was performing functions of a Legal Adviser under a contract and, therefore, could not seek remedy under Article 98 of the Constitution. Our attention has not been drawn to any contract which might have been executed between the parties. He was a Municipal servant and had been employed under section 29 of the Municipal Administration Ordinance, 1960, read with Article 45 of the Basic Democracies Order, 1959, there being no other provision in the statute under which a person can be employed. See State v. Muhammad Riazul Haq (PLD 1969 SC 434). The facts and circumstances of the case also indubitably show that the petitioner was an officer and servant of the Municipal Corporation.
It is provided in section 121 of the Ordinance that "the Government may make rules to carry out the purposes of "the Ordinance and that" such rules may provide for all or any of the matters enumerated in the Fourth Schedule, and all matters incidental, consequential and supplemental thereto". Item No. 9 of the Fourth Schedule is in the following terms:- "9. Service Rules.-(a) The conditions of service of the officials and servants of Municipal Committees;
(b) The grades of pay for the officials and servants of Municipal Committees;
(c) The schedule of establishment setting forth the staff that shall be employed by the Municipal Committees;
(d) The qualifications for various posts under Municipal Committees
(e) The principles to be followed in making appointments to various posts under Municipal Committees;
(f) The method for the holding of enquiries in cases where disciplinary action is proposed to be taken against officials and servants of Municipal Committees and penalties;
(g) All other matters necessary for the efficient discharge of their duties by the servants of Municipal Committees."
In pursuance of this provision, the West Pakistan Municipal Committees (Schedule of Establishment) Rules, 1964, were made, and they were notified on the 27th of November 1964. Under para. 9(c) of the aforesaid Schedule, the Government made rules providing the "schedule of establishment setting forth the staff to be employed by it." The posts of a Legal Adviser and two Additional Legal Advisers are borne on the Schedule of Establishment drawn up by the Municipal Committee of Lahore in compliance with rule 2 of the Rules.
The Municipal Committees Business Rules, 1960, came into force on the 28th of July 1961. The Chairman, under rule 4 of the said Rules, can, with the previous sanction of the Controlling Authority, by order in writing, delegate any of the powers vesting in him under rule 2 to any member, chief officer or other officer or servant of the Municipal Committee, or to any officer of Government, subject to such terms and conditions as may be specified in such order, and may in the like manner, alter, modify or withdraw such delegation. Under clause (p) of rule 2, executive power of the Municipal Committee vests in the Chairman in the matter of filing and defence of cases and suits on behalf of the Municipal Committee. He, in the exercise of the authority under rule 4, delegated these functions to the petitioner. The petitioner was not a member of the Corporation. He was obviously dele--gated the powers only as an officer or a servant of the Municipal Corporation.
The respondents have also not denied the statement made by the petitioner in his affidavit that that the Corporation had been treating him as a Municipal servant all along and that he was paid his salary in accordance with the procedure which was adopt--ed for payment to other Municipal servants; he had to submit monthly pay bills on the prescribed form duly signed by him which were checked by the Accounts Branch and audited by the Auditor, and payment was made to the petitioner through cross-cheques. Income-tax was also deducted from the salary of the petitioner under the Rules applicable to other Municipal servants. The Legal Advisers, besides his Monthly salary, was paid a special allowance of Rs. 900.00 per annum. The petitioner was also entitled to free medical aid like all other Municipal servants; he could not leave station unless he bad obtained leave and was governed by the same terms as to casual or sick leave as other Municipal servants; the Legal Adviser had also the power to sanction expenditure up to Rs, 20.00 at a time; to grant casual leave to subordinate staff of the Law Branch; to write confidential reports of the members of the said Branch; and was responsible for the efficient working of tie Law Branch. He was also entitled to T.A/D.A. Allowances as admissible to other Municipal servants in the event he was to go out of station on official duty. The petitioner thus had no position in the Corporation other than that of its employee. This fact is borne out also by the letter dated the 16th of October 1970, which the Administrator addres--sed to the Secretary to the Government of Punjab, Basic Demo-- cracies, Social Welfare and Local Government Department, wherein he unmistakably stated that the post of Legal Adviser and two posts of Additional Legal Advisers were included in the Schedule of Establishment maintained under the Municipal Administration Ordinance, 1960, and the rules framed under it. The incumbents of these posts are, therefore, as much Municipal servants as other members of establishment of this Corporation whose posts are included in the Schedule of Establishment referred to above.
14. The authority of the Corporation to remove the Legal Adviser was also not affected by the 1965- Ordinance, which, no doubt, provided that "notwithstanding anything tit the contrary contained in any law, rule, by law etc., the Government may remove any Legal Adviser". This provision did not take away the power of the appointing authority which it had under Article 45(4) of the Order to remove the Legal Advisers. All that it provided was that the Government could also remove him.
Whereas the power of removal by the appointing authority was not interfered with by the Ordinance, the authority was given to the Government also to remove a Legal Adviser. Thus, after the Ordinance of 1965 was promulgated, a Legal Adviser could be removed both by the Municipal Corporation and the Government.
15. West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965 was repealed by the West Pakistan Statutory Bodies (Appointment and Re--moval of Legal Advisers) (Repeal) Ordinance, 1969, and the authority of the Government to remove a Legal Adviser came to an end with the result that the power to remove a Legal Adviser remained vested under Article 45(4) of the Basic Democracies Order only in the Municipal Committee or in case it was superseded in the Administrator. It was held in M. S. Khawaja v. Chairman, Lahore Municipal Corporation (PLD 1966 Lah. 1006) that "para. (4) of Article 45 of the Basic Democracies Order (P. O.
18 of 1959), dealing with the servants of Local Councils and made applicable to Municipal employees by virtue of section 29 of the 'Municipal Administration Ordinance, does empower the Controlling Authority to suspend, remove, dismiss or otherwise punish his Secretary or a principal officer, and the Local Council to deal similarly with any other employee whom it has appointed".
16. It was next contended that it was well within the competence of the Government to have issued the impugned direction to the Administrator to remove the petitioner from the office of Legal Adviser. Reliance was placed on section 114 of the Ordinance under which the provisions of Article 73 of the Order apply mutatis mutandis to the Municipal Committees as they apply to Local Councils as if the said provision had been enacted in the Ordinance. In clause (1) of Article 75 of the Order, it was provided: "The Controlling Authority may direct any local council, or any person or authority responsible thereto to take, within such period as may be specified, such action as may be necessary for carrying out the purposes of this Order." It was contended that under rule 5 of the West Pakistan Municipal: Committees (Legal Advisers) Rules, 1964, the Government had to be furnished a statement every quarter of cases entrusted by the Municipal Committee to its Legal Advisers, and that the Government, on perusal of the statement of work done by the Legal Adviser was not satisfied with his performance and, there fore, gave a direction to the Administrator to remove him, which: was necessary to advance the purposes of the Ordinance. On behalf of the petitioner, this statement was vehemently controverted and reliance was placed on the report of the Administrator who had eulogised his work. We would not like to go into the question whether or not the work of the petitioner was satisfac--tory, for the reason that even if it be assumed that a direction under section 110 of the Ordinance, read with Article 73 of the Order could be given, the direction was given by the Government in the case which is not the Controlling Authority. The conten--tion pmt forth by the learned Advocate-General on the basis of section 111 of the Ordinance under which the Controlling Autho--rity could require a Municipal Committee to take such action as may be specified, is also untenable because the Commissioner who is the Controlling Authority in the case of the petitioner had not made any such order. However, sections 110 and 111 of the Ordinance, which only confer supervisory jurisdiction on the Controlling Authority over the Municipal Committees, do not empower it to pass any order or to give any direction which may be in conflict with the exercise of certain powers by the Municipal Committee. If under a provision of the Ordinance the power can be exercised by the Committee, the Controlling Authority cannot give a direction to it which may result in usurping the jurisdiction of the Municipal Committee. The power of superintendence can be exercised only in aid of the provisions of the Ordinance and not in their supersession or disregard. The power of superintendence is somewhat analogous to that of the King's Bench Division to interfere by mandamus and can only be exercised in cases of non-exercise or illegal exercise of jurisdiction. Superintendence is not a legal fiction whereby an authority exercising this power is vested with this omnipotence, but is a term having a legal force and signification. It only enables an authority to keep its subordinate functionaries within the bounds of their authority, and to check that they do what their duty requires and that they do it in a legal manner. In Abdul Hamid v. Secretary, Basic Democracies, Local Government Department, Dacca (PLD 1966 Dacca 129) it was held by a Division Bench "Article 73 provides that Government shall exercise general supervision and control over the Local Councils in order to ensure that their activities conform to the purposes of this Order . . . . . . . The general power contained with regard to supervision and enquiry in Articles 73 and 76 cannot be invoked to negative the right of the members of a Committee to remove a Chairman by passing a vote of no- confidence provided the vote of no-confidence is supported by two-thirds of the members of the Committee. We, therefore, do not think that these provi--sions empowered the Provincial Government to give the direction given in the impugned telegram." In Gulzar Khan v. Controlling Authority (PLD 1968 Lah. 991) it was observed: "He further submits that under Articles 73 to 81 of the Basic Democracies Order, 1959, and particularly Article 74, the Controlling Authority had a super-- visory control over the activities of Local Councils and had the power to quash their proceedings where it felt that they were not In conformity with law or were in any way against public interest. In this case, since the Election Tribunal happened to be the Controlling Authority, it is contended, it was within its competence to quash the proceedings of the Union Committee holding that it was against public interest to elect a man as a Chairman who had himself earlier resigned and had hoodwinked the law." It was held at page 896 of tire Report: "Jurisdiction of the Controlling Authority under Article 74 of the Basic Democracies Order is quite distinct from the jurisdiction to hear election disputes, under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960.
The latter is a specific provision on the subject in which general jurisdiction of Article 74 cannot be imported." In this view of the matter the general power contained with regard to supervision, and Articles 73 and 76 of the Order, read with section 110 of the Ordinance, cannot be invoked to negative the right of the Corporation to remove a person under Article 45(4) of the Order.
17. It was also argued on behalf of the contesting respon--dents that the Government only gave a suggestion to the Administrator to dispense with the services of the petitioner, and if he did not want to pass the order, he should have declined to do so, but he passed the order which should be deemed to be one under Article 45(4) of the Order read with section 29 of the Ordinance. The learned counsel for the petitioner contended that even if it be assumed that the Administrator passed the order, it is without lawful authority inasmuch as the provisions of Local Bodies (Efficiency and Discipline) Rules were not complied with. We do not consider it necessary to examine in this case whether or not these rules are applicable to a Legal Adviser, because we, are of the opinion that the order of removal has not been passed by the Administrator, nor can it be deemed to be his order. He had only implemented the instructions given by the Government. The Government could not by giving instructions limit the authority or discretion conferred on the Municipal Committee, and after its supersession, on the Administrator, to remove a person which was within their exclusive competence (after the repeal of the West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965 under clause (4) of Article 45 of the Basic Democracies Order, read with section 29 of the Municipal Administration Ordinance. We may refer to Simms Motor Units Ltd. v. Minister of Labour and National Services ((1946) 2 All E R 201). The facts of that case were that on February 23, 1945, S. M. U. Ltd., a schedule undertaking within the Essential Work (General Provisions) (No. 2) Order, 1942, dismissed one of its workmen alleging serious misconduct. The workman com--plained to the national service officer and his complaint and appeal was referred lo the local appeal board, who held that the dismissal was not justified on the ground of serious mis--conduct. The national service officer had received instructions from the Ministry that in all cases of dismissal for alleged serious misconduct he was always to direct re- instatement if (a) the recommendation of the appeal board that the dismissed workman's appeal be allowed, was unanimous and (b) the dis--missed workman desired to be re-instated. Acting on these instructions, the national service officer directed S. M. U. Ltd., to re-instate the workman. It was contended on behalf of S. M. U. Ltd., that the direction to re-instate was invalid because the national service officer had not exercised his discretion under the powers conferred on him by the Essential Work (General Provi--sions) (No. 2) Order, 1942 (as amended). It was held that the Minister could only confer power upon himself or his representa--tives under the Defence (General) Regulations, 1939, by Statutory Rules and Orders, and that he could not, by giving instructions which were not orders, limit the duties or discretion conferred on the national service officer by the Essential Work (General Provisions) (No. 2) Order, 1942. It was also held that the direction to re-instate was invalid because the national service officer had not exercised his discretion in the matter as required by the Order. In Mian Gut Muhammad v. West Pakistan Govern--ment and another (Writ Petition No. 135 of 1964, decided on the 24th of March 1966) it was held that the order of compulsory retirement made by the Superintendent of Police on the direction given by the Deputy Inspector-General of Police was without lawful authority for the reason that the Superintendent of Police did not apply his own mind to the case, although he was the proper authority to make the order. In Dossabhai Bejanji Alotivala v. The Special Officer, Salsette Building Sites (I L R 36 Bom. 599) the Collector while awarding compensation under the Land Acquisi--tion Act, observed: "Government in their memorandum No. 10578 R.D., of 17th October 1908, have directed me to award compensation at the rate of Rs. 4 per acre for Khajan land and Rs. 120 per acre for Kharif land, and I therefore make my award accordingly." The award was set aside with the observations: "It has been contended by Mr. Raikes, for the appellant, that although the appointment of a Collector under the Act rests wholly with the local Government, yet when they have once appointed that officer, he must be allowed to prosecute his enquiries under the Act up to their end, without interference from the Government in their executive capacity. It appears to me that that argument must prevail . . . . . . . . . . It is the Special Collector's business to fix the sum which in his best judgment is the value and should be offered: in other words, as the Statute enacts, it is the Collector's opinion which is to prevail not the conflicting opinion imposed on him by another authority acting upon other materials. In this case, it seems to me, as I have said before, that if the action of Government is to be sustained the result is a modification of the Act by substituting for the Collector's opinion, the opinion of the Executive Government." In the Province of West Pakistan v. Jogesh Chandra Lodh (11 D L R 411) while dealing with a case of requisition of property under the (Emergency) Requisition of Property Act (XIII of 1948) it was observed: "When powers of the Provincial Government have been delegated to an officer, that officer is substituted for the Provincial Government for the purpose of section 3, with the result that it is he who has to form an opinion that it is expedient or necessary to requisition any property for the administration and development of the Province or for any other public interest connected therewith. The forming of the opinion is a sine qua non for making of an order under section 3." It was further held: "It is perfectly clear from these proceedings that the Additional District Magistrate who made the order under section 3 merely acted as a tool of the Land Acquisition Department or the Government and did not at all apply his mind to the question whether it was necessary or expedient to requisition the property for a public purpose. On this ground alone, therefore, the order must be held to be invalid". The Municipal Committee and after its supersession the Adminis--trator alone was competent to order the removal of the petitioner under section 29 of the Ordinance read with Article 45(4) of the Order. When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers. It was held in B. S. Industries v. Deputy Registrar, Trade Marks (PLD 1969 Dacca 451) that even an Executive Officer when he performs a statutory function is not to be influenced by any direction from any quarter.
18. It was next contended that the Municipal Committee had been superseded and the Administrator was appointed by the Government who being subordinate to the Government was bound by its direction and if he removed the petitioner under the directions of the Government, the order is unexceptionable. Reliance was placed on Fait Bakhsh v. Municipal Committee, Multan (PLD 1960 Lab. 488) and Iqbal Begun v. Municipal Committee (PLD 1952 Lab. 380) wherein it was held that after the supersession order is passed all property that previously vested in the Committee vests in the Government, and the Administrator who is an officer appointed by the Govern--ment even if he is paid from the Municipal funds should be regarded as one who is paid by the Government during the period of supersession, and that his functions bring him within the meaning of a public officer. He also relied on Province of East Pakistan v. M. Amir Hussain (PLD 1963 SC 185) where the High Court had found that the Director of Public Instruction upon his own judgment of the merits of the case was reluctant to make an order against M. Amir Hussain, and that he made it under the directions of the Provincial Government, and that, in the circumstances, the impugned order was not an order passed by him. Their Lordships of the Supreme Court held: "Now abuse of power by the D. P. I., appears in such a proceeding, and the Chief Executive is guilty of no abuse of its own power in considering the case, and giving a direction in the circumstances." They further proceeded to hold that there was "no dishonesty in the matter, since it is not dishonesty for a subordinate to submit his judgment to that of an executive superior unless mutual independence is required by the provision of an appeal. The statute would seem to require, since there is no appeal from an order made thereunder, that action in each case should be taken only after full examination by all relevant authorities, and that is the case here." It is clear from the judgment that there was direct line of subordination in that case and, in the circumstances, it was held that if an order spas passed against M. Amir Hussain after fall examination of his case by all the authorities that order was not bad. That position does not prevail here. The position of the Administrator is not that of a subordinate to the Government Clauses (a) and (b) of subsection (2) of section 112 of the Ordinance read as follows:- "(2) On the publication of a notification under sub--section (1)-
(a) the persons holding office as Chairman, Vice-Chairman and members of the Municipal Committee shall cease to hold office;
(b) all functions of the Municipal Committee shall during the period of supersession, be performed by such person or authority as the Government may appoint in this regard."
The Government has the power to appoint a person as the Administrator of the Municipal Corporation which it may super -cede, but once it has appointed a person as an Administrator h is to perform all functions of the Municipal Corporation. He may or may not be a Government servant.
The Government vis-a-vis the Administrator is not his Chief Executive and cannot exercise any executive authority over him, except the one which is conferred on it under the Ordinance. The Administrator, in the absence of the Committee, has the power under section 29 N of the Ordinance, read with Article 45(2) of the Order to appoint the Legal Advisers and he can also remove them under clause (4) of Article 45. Under section 119 of the Ordinance, any person - aggrieved by an order passed by a Municipal Committee, or the Administrator, as the case may be, can appeal to such authority as may be prescribed. By a West Pakistan Gazette Notification dated the 31st of December 1960, West Pakistan Municipal Committees (Appeals) Rules, 1960, were enforced, under which an appeal against the order of the Municipal Committee or the Administrator lies before the Commissioner. A person aggrieved by the order of the Controlling Authority can approach the Government. In this view of the matter, the ratio decidendi of the judgment of their Lordships of the Supreme Court in Province of East Pakistan v. M. 4m!r Hussain is not attracted to the facts and circumstances of the present case.
19. As a last resort, it was contended on behalf of the respondents that the petitioner being an Advocate was governed by the provisions of the Bar Councils Act and the Rules made there-- under and, therefore, could not under law accept the employment under the Corporation. Whether or not he was competent to do so is a matter nor for us to adjudicate upon in these proceedings, because if he had violated any provision of the Bar Councils Act or the Rules framed under it, he may expose himself to an action under the said provision, but it by itself is not sufficient to hold that he is not an employee of the Corporation when he bad that status under the Municipal Administration Ordinance, 1960.
20. The upshot of the above discussion is that this petition is accepted and the impugned order is declared as without lawful authority and consequently of no legal effect, There shall be no, order as to costs.