SAAD SAOOD JAN, J.-- This judgment will dispose of Civil Appeal No. _'12 of 1980 and two petitions for special leave to appeal, namely, C . P . S . L.. As. No.22-P and 23-P, both of 1981. They all arise from the judgment dated 16-12-1980 of the Peshawar High Court in writ petitions No. 708 of 1979 and No.3 of 1980.
2. Gul Naras Khan and Mahabat Khan were employees in grade 18 of the Board of Intermediate and Secondary Education, Peshawar. On 6-4-1978 the Governor of N.-W.F.P. Promulgated Ordinance VIII of 1978. Section 3 of the Ordinance enabled him to remove from service or revert to a lower post or grade in public interest any person in Corporation service who had been appointed or promoted during the period from 1-1-1972 to 5-7-1977. The expression "person in Corporation service" was defined in section 2 to mean every person who was in the employment of a corporation or an authority or institution, set-up, established, managed or controlled by the Government of the North-West Frontier Province. Exercising his powers under section 3, ibid, the Governor by an order dated 29-9-1979 reverted Gul Naras Khan and Mahabat Khan to grade 17 and further directed that the services of Gul Naras Khan be placed at the disposal of Director of Education (Colleges) for appointment against a suitable post under the rules. Both Gul Naras Khan and Mahabat Khan filed separate writ petitions in the High Court to challenge the legality of the order of the Governor. Their case was that as employees of the Board they were not persons in Corporation service as defined in section 2 of the Ordinance and for that reason the Ordinance did not apply to them. Gul Naras Khan further averred that the Governor was not competent to transfer his services from the Board to an outside department.
3. Both the writ petitions were heard together by a Division Bench of the High Court. After examining the provisions of the West Pakistan (Board of Intermediate and Secondary Education, Peshawar)
Ordinance, XIX of 1961, the High Court held that the Board was an institution controlled by the Government; for that reason both Gul Naras Khan and Mahabat Khan were persons in Corporation service within the meaning of section 2 of Ordinance VIII of 1978 and as such the Governor was competent to revert them to a lower grade as their promotion to grade 18 was made within the specified period. As regards the transfer of Gul Naras Khan to the Directorate of Education it held that the Governor had no power to make such an order. Accordingly, it dismissed the writ petitions of Gul Naras Khan and Mahabat Khan in so far as it related to their reversion to grade 17 but declared the order of transfer of Gul Naras Khan to the Directorate of Education as without any legal effect.
4. Gul Naras Khan and Mahabat Khan seek leave to appeal to challenge the correctness of the view taken by the High Court with regard to their reversion. On their part the Governor and the Secretary in the Department of Education have preferred an appeal by special leave to call in question the legality of the order of the High Court to the extent that it has declared the transfer of Gul Naras Khan to the Directorate of Education to be without legal effect.
5. The first question for consideration before us is whether Gull Naras Khan and Mahabat Khan are persons in Corporation service as defined in section 2 of Ordinance VIII of 1978. This section reads as follows: - "In this Ordinance, unless there is anything repugnant in the subject or context, "person in Corporation service" means every person who is in the employment of a corporation or an authority or institution set up, established, managed or controlled by the Government of the North- West Frontier Province,***--- As already indicated the view taken by the High Court is that the Board is an institution controlled by the Government and as such both Gul Naras Khan and Mahabat Khan are covered by the above definition. In this context it has observed:- "In wider sense the word "control" suggests the power to check, restrain or influence the authority which is being placed under the control of the Government. We have to see whether under the Scheme of Ordinance XIX of 1961, the Government has any control over the Board. Section 9 (2) provides that the Government may by general or special order modify the jurisdiction of the Board with regard to its territorial limits and the institutions. Again section 20 (2) provides that the Regulations made by the Board, which in a way lay down the scheme of carrying out day-to-day affairs of the Board, are subject to the scrutiny of the Government. The Government has power to approve the Regulations made by the Board or to disapprove them with its own recommendation for further consideration. In other words no Regulation made by the Board shall have the force of law unless it is approved by the Government. This clearly shows that the Legislature never intended to leave the Board free of Governmental control in all respects. In other words unless the Government so desires the Board cannot carry out its day-to-day affairs unhindered without the control of the Government: for it is the Regulation made by the Board and approved by the Government which would provide for the machinery in which the day-to-day affairs of the Board are to be carried out. This clearly shows that the Government has a direct check and control over the affairs of the Board and as such the service under the Board does come within the definition of section 2 of Ordinance VIII of 1978."
Although, with due respect, it is difficult to agree that unless the Government so desires the Board cannot carry out its day-to-day affairs unhindered without the control of the Government, novertheless, it does appear from the fact that all regulations of the Board require the approval of the Government before they become operative that the Government exercises some modicum of control over the Board. This conclusion finds further support from the provisions of section 23 of Ordinance XIX of 1961 which require the Board to submit its statements of accounts annually to the Government. The accounts are to be audited in such manner as may be prescribed by the Regulations. As already noted, the Regulations are to be framed with the approval of the Government.
6. There is yet another aspect of the matter. The Board was constituted in pursuance of section 3
(1) of Ordinance XIX of 1961. This subsection reads as follows:- "As soon as may be, there shall be constituted and established at Peshawar a Board called a Board of Intermediate and Secondary Education, Peshawar."
It will be noticed that the Board did not come into existence immediately on promulgation of the Ordinance but as would appear from the words ''as soon as may be" occurring in the subsection, that some time was to elapse between the promulgation of the Ordinance and the constitution of the Board. It is difficult to construe the subsection as creating the Board on its own force. On the other hand, the subsection appears to be in the nature of a direction given to the Government to constitute and establish the Board. In this view of the matter, the Board will seem to be an institution set-up by the Government albeit under a statutory direction. This being the legal position it is difficult to agree with the learned counsel appearing for the petitioners that service under the Board was not corporation service within the meaning of section 2 of Ordinance VIII of 1978. As both the petitioners were covered by the definition of person in Corporation service the Governor was competent under section 3 of the Ordinance to revert them to a lower grade.
7. The order of placing the services of Gul Naras Khan under the Directorate of Education was made by the Governor in exercise of his power under subsection (6) of section 13 of Ordinance XIX of 1961.
This subsection was added to section 13 by Act XII of 1976. It reads as follows:- "Notwithstanding any thing to the contrary contained in this Ordinance, regulations or rules, the Controlling Authority may--
(a) place the services of any of the officers or other employees of the Board at the disposal of the Government or University or Institution, for such period and on such terms and conditions as may be determined by him: Provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer.***** --- It may be mentioned that under section .12 of the Ordinance the Governor is the controlling authority of the Board. Now, on its plain reading the subsection does empower the Governor to place the services of an employee of the Board at the disposal of the Government or an institution not connected with the Board; the only rider on the power of the Governor in this regard is that the terms and conditions offered to him in the new post should not be less favour-able than those which he was enjoying before his transfer.
8. The contention on behalf of Gul Naras Khan is that as the subsection under consideration was added in the Ordinance on 16-10-1976, it did not apply to persons who were already in service of the Board before that date. In support of his contention reliance has been placed upon Hassan v .
Fancy Foundation PLD 1975 SC 1, Haji Noor Muhammad Khan v. Haji Muhammad A.I Khan PLD 1980 Pesh. 180 and Garikapati Veeraya v. N. Subbiah Choudhry P.L.D. 1957 S.C. (Ind.) 448. These cases relate to the effect of change in law on the right of appeal in pending proceedings and the view taken in them is that the right of appeal is a substantive right and that it accrues to a litigant as soon as the litigation begins; further, it is not affected by a change in law unless the amending law gives an indication to that effect either by making an express provision or by necessary intendment. There cannot be any quarrel with these propositions for retrospective effect not to be given to a statute so as to impair an existing right unless that effect cannot be avoided without doing violence to the language of the statute. (See Craies on Statute Law, Sixth Edition, P 388). In the appeal before us it will be noticed that the new subsection (6) referred to above contained a non-obstante clause which was intended to override all provisions in the Ordinance, regulations and rules which were in force at the time when the subsection came into force. If the subsection was not to apply to emplyees of the Board who were in service before it was enacted there was hardly any need for the non-obstante clause. By prefacing the subsection with this clause the Legislature made its intention very clear that it was to apply to those emplyees of the Board as well who were already in its service. It is therefore difficult to agree with the High Court that as Gul Nras Khan was already in service before the introduction of the subsection in section 13 the Controlling Authority, that is, the Governor, was not competent to transfer him to a post outside the Board.
9. For the reasons stated above we dismiss the petitions for special leave to appeal preferred by Gul Naras Khan and Mahabat Khan and accept the appeal of the Governor and the Secretary in the Education Department and withdraw the declaration issued by the High Court. There will be no order as to costs in the appeal.