ZAFFAR HUSSAIN MIRZA, J.--The eleven petitioners in this petition are presently the employees of the Lahore Development Authority which was constituted under section 4 of the Lahore Development Authority Act, 1975. They had joined service initially with the Lahore Improvement Trust on various dates from 1953 to 1957. Under section 47 of the aforesaid Act the Lahore Development Authority (to be referred to as 'the Authority') succeeded to the Lahore Improvement Trust which ceased to function by virtue of section 48(2) of the Act. It is admitted position that the petitioners have become the employees of the Lahore Development Authority by operation of law.
Except the first three petitioners who are acting as Assistant Directors in basic pay scale 17, all the rest are holding posts in basic pay scale 16. According to the petitioners they were among the senior most officers of the defunct Lahore Improvement Trust.
2. The controversy between the parties arose when the authority advertised some posts of Assistant Directors (Accounts) and Security Officers in B.P.S.-17 in which the candidates for the former posts were required to possess the degree of M.B.A. With three years experience or M.Com.
With five years experience or B.Com with seven years experience. According to the petitioners, who did not possess these academic qualifications, the authorities of the Lahore Development Authority were not competent to prescribe the minimum academic qualifications or experience for higher posts in Grade-17 as no such qualifications were prescribed in the Rules which governed them, namely, Punjab Town Improvement Trust Rules, 1939. Accordingly they protested against their exclusion from consideration but their protests were rejected on the ground that they were not eligible for promotion to those posts as they did not meet the requirements as to qualifications prescribed by the Regulations framed by the Authority known as the Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978, (hereinafter to be preferred to as 'the Regulations').
3. It is in these circumstances that the petitioners filed a constitutional petition before the Lahore High Court, Lahore, seeking to challenge the Service Regulations as ultra vires and illegal, whereby the minimum educational qualifications and prior experience were prescribed as requirements for eligibility for recruitment to the posts of Assistant Directors (Accounts). This constitutional petition was dismissed by a learned Single Judge of the Lahore High Court by order, dated 5th April, 1986.
Hence the present petition for leave to appeal.
4. In support of the petition learned counsel has raised the following contentions:
(i) The Regulations are invalid as they have been framed by the Chairman of the Authority and not by the Authority itself.
(ii) The power to frame Regulations vesting in the Authority by virtue of section 45 of the Lahore Development Authority Act, 1975, was not liable to be delegated to the Chairman.
(iii) Alternatively, the conditions imposed upon the exercise of delegated power were not fulfilled, in the circumstances of the present case, and there was no emergency justifying resort to delegated authority.
(iv) The Regulation being repugnant to and inconsistent with the Punjab Town Improvement Trusts Service Rules, 1945, read with Punjab Town Improvement Trust Rules, 1939, which were saved under section 48(3) of the Lahore Development Authority Act, are ultra vires and illegal. Taking up the last contention first as that was the main contention urged before the High Court, it may be pointed out that section 48(3) of the Lahore Development Authority Act provides that among other things the rules framed by the Lahore Improvement Trust, 'shall so far as they are consistent with the provisions of this Act, continue inforce and be deemed to have been madeunder this Act'. Learned counsel argued that as no rules have been framed by the Government under the new Act by virtue of the deeming provisions of section 48(3) , the Service Rules of 1945 are to be deemed as the rules framed by the Government under section 44 of the Lahore Development Act. On the premises it was urged that the power of the Lahore Development Authority to frame Regulations was subject to the said rules and consequently, no educational or minimum experience qualifications could be prescribed when no such requirements were laid down by the said service rules. Now the learned Judge in the High Court repelled this argument as under:--- "Under section 45 of L.D.A. Act, 1975, the L.D.A. Is competent to frame regulations. Similarly under section 48(3) the existing rules were saved, if they were not in consistent with the provisions of the Act. Looking at the Rules of 1939 and the Regulations of 1978, one aspect stands out very clearly. The Rules of 1939 do not provide for the posts of Assistant Directors while the Regulations of 1978 do so.
The Rules of 1939, therefore, cannot apply to areas which were not covered by them. Similarly the L.
D. A. Was competent to make regulations regarding areas unoccupied by the existing rules. The posts of Assistant Directors Accounts can, therefore, be filled only under the Regulations of 1978."
The learned counsel has not been able to point out any infirmity in the reasoning adopted by the learned Judge. The Punjab Town Improvement Trust Rules, 1939, are not directly relevant as they deal with other matters but the Punjab Town Improvement Trusts Service Rules, 1945, deal with terms and conditions of the various posts under Town Improvement Trusts and lays down the basic qualifications for purposes of recruitment. The High Court is right that these rules do not provide for the post of Assistant Directors of Accounts and obviously, therefore, there is no question of inconsistency between the said rules and the regulations now framed which provide for this post.
We may, however, point out a basic fallacy in the argument advanced which was not brought to the notice of the learned Judge in the High Court. It may be pointed out that the Lahore Development Authority Act did not repeal the Town Improvement Act, 1922, but only provided for devolution of the powers and functions of the Lahore Improvement Trust upon the Lahore Development Authority under section 47 of the Lahore Development Authority Act. Further, under section 48(2) on the establishment of the Lahore Development Authority, the Town Improvement Act, 1922, ceased to apply to the areas and schemes under the jurisdiction of the defunct body. The argument of the learned counsel ignores this aspect and proceeds on the assumption that this is also a case of enactment repealed and re-enacted with the usual saving clause to continue in force the rules etc. Framed under the repealed statue until duly altered under the repealing enactment. Therefore, section 23 of the General Clauses Act, 1956, is not attracted in this case by its own force. The question as to what rules are saved to be determined strictly in terms of section 48 of the Lahore Development Act.
5. A careful analysis of the provisions of subsection (3) of section 48 shows that rules, regulations and orders etc. Made by the Lahore Improvement Trust were to continue in force and be deemed to have been made under the Lahore Development Authority Act. The service rules on which reliance has been placed by the learned counsel were however, framed under section 73 of the Town Improvement Act, 1922, by the Provincial Government and not by the Lahore Improvement Trust. In the Act of 1922, rule making power vested in the Provincial Government in respect of certain matters enumerated in section 73 and the Trusts constituted under the said Act were also empowered under section 74 to make rules in regard to certain matters, with the previous sanction of the Provincial Government consistent with the Act and any rules made by the Provincial Government under its own rule making power. Therefore, in regard to the Trusts there would ordinarily be two sets of rules, one framed by the Provincial Government and the other by the Lahore Improvement Trust. Section 48(3) of the Lahore Development Act saves only the latter category of the rules. The result is that the rules framed by the Provincial Government under section 73 so far as they were applicable to Lahore Improvement Trust did not remain in force with the Town Improvement Act, 1922, ceasing to apply to- the successor body i.e. Lahore Development Authority. It follows that the rules of 1939 or 1945 placed no fetters on the power of the Authority to frame regulation under section 45 of the Lahore Development Authority Act. The Regulations cannot be assailed on the basis of their supposed repugnancy to rules framed under the Act of 1922.
6. Now coming to the rest of the contentions advanced by the learned counsel, these relate to the procedure adopted in the matter of framing the regulations and the competence of the authority which adopted the regulation. According to the petitioner the regulations were adopted by the Chief Minister of Punjab on 2nd June, 1976, in purported exercise of delegated power conferred upon him by means of resolution passed by the Lahore Development Authority in 1976. According to this resolution all powers of Lahore Development Authority stood delegated to the Chairman of the Authority who was the Chief Minister. But the working rule laid down was that only those matters will be put up to the Chairman for decision 'as cannot wait upon a regular meeting of the Authority'. The regulations were sought to be challenged on the ground that firstly the rule making power vesting in the Authority, being subordinate legislative power could not be further delegated and secondly that the framing of the regulations is not a matter of urgency which could not await consideration in a regular meeting of the Authority. The learned Judge in -the High Court, who seems to have perused the official record consisting of the summary placed before the Chief Minister, etc. Observed that the delegation was duly made by the circulation among all the members who approved the proposal. Under section 10 of the Lahore Development Authority Act the Authority could delegate its powers and functions. Be that as it may a printed copy of the service regulations framed under section 45 of the Lahore Development Authority Act has been placed before us which shows that the regulations of 1978 and the schedule thereto were approved by the Martial Law Administrator, Punjab. We do not think that in the circumstances the regulations are open to any legal objection. In any case the challenge offered to the said regulations suffered from laches as held by the High Court for which there is no adequate explanation on the part of, the petitioners.
7.For all these reasons we find no force in this petition which is accordingly dismissed.