ABDUL HAKEEM KHAN, J.-Noor Muhammad, Mechanical Superintendent, Municipal Committee, Peshawar moved the present petition under Article 98 of 1962-Constitution, praying for a declaration that the order of the Commissioner (respondent No. 1) dated 29-12-1971 accepting the appeal of Amanullah (respondent No. 3) was, firstly, in violation of the orders of the Provincial Government dated 7-3-1970; secondly without lawful authority ; and thirdly of no legal effect.
2. The Commissioner, Peshawar Division has been arraigned as respon--dent No. 1, while the Chairman, Municipal Committee, Peshawar figures as respondent No. 2. The person who has benefited from the order, namely, Amanullah is respondent No. 3.
3. To appreciate the contention of the petitioner, a short reference to the facts appears to be necessary. The petitioner was appointed as Mechanical Superintendent on the 14th of April 1961. His services were, however, terminated by the Chairman, Municipal Committee, Peshawar, pursuant to the orders of the Commissioner, Peshawar Division dated 21st September 1966, as a sequel to the failure of his appeal against the order of Chairman, Municipal Committee. There was a review petition but the same was treated as an appeal and eventually rejected by the Commissioner on the 11 of December 1967. The petitioner then moved the Provincial Government and they accepted his petition on 7March 1970 and observed that he continued to be the Municipal employee and should be allowed to re join duty. It is said that while the case of the petitioner was pending with the Provincial Government, respondent No. 2 finding the post held by the petitioner vacant, appointed respondent No. 3 as Mechanical Superintendent on 13March 1967, but that appointment was not to last long, for respondent No. 3 was suspended on 25th September 1969 on charges of corruptionth th th pursuant to the orders of Martial Law Authorities. It is noteworthy that while the suspension order was in force the Provincial Government made its order dated 7March 1970 alluded to above, and in pursuance thereof the Chairman, Municipal Committee by his order dated 6th May 1971, ter-- minated the services of respondent No. 3 elaborating that on the acceptance of petitioner's appeal, the vacancy against which respondent No. 3 employed, ceased to exist. Respondent No. 3 then preferred an appeal to the Commissioner (respondent No. 1) who accepted the same on the 29th of December 1971, after an elaborate discussion of the points involved. He came to the conclusion that the order of the Provincial Government dated 7th March 1970, was an order without jurisdiction and, therefore, the vacancy against which respondent No. 3 was working continued to exist. The Commissioner also added that it flows logically from his orders that the order of his predecessor dated 11th December 1967 dismissing the petitioner's appeal will remain intact and the petitioner shall stand removed from the Municipal service. Further, the service of respondent No. 3, cannot be terminated for non-availability of a vacancy though he will remain under suspension and can be proceeded against under the Rules,
4. Succinctly stated the question for determination before us is as to whether the Provincial Government had any powers under the Municipal Ordinance, 1960 (hereinafter called the Ordinance) to set aside the order dated 11th of December 1967 of respondent No. 1 and to declare that the petitioner continued to be a Municipal employee adding that he may be allowed to rejoin duty. If we come to the conclusion that the Provincial Government had no jurisdiction to pass the order, the order of respondent No. 1 dated 29-12-1971 disregarding the Provincial Government's order will remain intact and the petition shall have to be rejected.
5. The learned counsel for the petitioner invited our attention to the pronouncement of the Supreme Court of Pakistan in A.I Muhammad v. Muhammad Ramzan (1969 SCMR 46), in support of his contention that in a similar case their Lordships of the Supreme Court were of the opinion that the Provincial Government as a controlling authority could set aside an appellate order of the Commissioner under section 119 of the Ordinance. This argument of the learned counsel for the petitioner, however, assumes that in the case of Municipal Committee at Peshawar also the Provincial Government was a controlling authority under the Ordinance. The expres--sion `Controlling Authority' has been defined in section 3(10) ibid, to mean that where the Government so specifies by a notification in the official Gazette it shall be the Government itself but in all other cases it shall be the Commissioner. It has been conceded at the bar that Notification No. SOH.(L)/1- 15/60 has been superseded by a subsequent Notification of 31December 1960 and that, therefore, the Government has ceased to be the Controlling Authority of the Municipal Committee, Peshawar.
The Notifica--petition of the 31December 1960, as published in the Gazette of West Pakistan, Extraordinary, 31st December 1960 reads No. E&A(HW-LG)-13/20-60.-In pursuance of the provisions of clause (10) of subsection (1) of section 3 of the Municipal Administra--petition Ordinance, 1960 (X of 1960), and in supersession of the Govern--ment' of West Pakistan, Home Department Notification No. SOH (L) I-15/60, dated the 1May 1960, the Governor of West Pakistan is pleased to specify the Municipal Committees of Rawalpindi and Lahore as the Municipal Committees in respect of which Government shall be the Controlling Authority. Commissioners shall be the Controlling Authority in respect of all other Municipal Committees within their Divisions.
6. No sooner it is conceded that the Provincial Government is no longer the Controlling Authority of the Municipal Committee, Peshawar, we shall have to be satisfied if the Government had the powers to set aside the order of the Commissioner, .Who himself happened to be a Controlling "Authority. This is, as a matter of fact what distinguishes the present case from the case before their Lordships of the Supreme Court.th st st st
7. When confronted with the difficulty, the learned counsel for the petitioner invited our attention to section 110 of the Municipal Administration Ordinance and submitted that Article 73 of the Basic Democracies Order, 1959 (hereinafter called the Order), were mutatis mutandis applicable to the Municipalities and the said Article gave general powers of control and superintendence to the Government. That is to say, the order of the Provincial Government can be defended on the ground that section 110 of the Ordinance read with Article 73 of the Order gave ample jurisdiction to the Provincial Government to intercede in the matter. Article 73 of the Order reads : The Government shall exercise general supervision and control over the local councils in order to enure their activities conform to the purposes of this Order.
8. But when we make the necessary adaptation in pursuance of sec--petition 110 of the Ordinance, the Article will read as follows : The Government shall exercise general supervision and. Control over the Municipal Committees in order to enure that their activities conform to the purposes of this Order.
9. The above quotation amply demonstrates that the powers that have been given under the law by referential Legislature are `powers of a general supervision and control over the Municipal Committees. That is to say, powers of general supervision and control over the controlling authorities or for that purpose the Commissioner who was to hear an appeal in pursuance of statutory powers under section 119, were not given to the Provincial Government. It will- be seen that Article 73 and other sections quoted in section 110 of the Ordinance, occur under Chapter II relating to Administration of Local Councils in the Order. Eyen in the Ordinance Chapter relating to Administration of Municipal Committees has been numbered as Chapter I, while section 119 whereby appellate powers were conferred upon the Commissioner appears under Chapter IV- Miscellaneous.
10. For the reasons we agree with the Commissioner that the Provincial Government had no powers to pass the order dated 7March 1970, and that the appellate orders of the Commissioner which have been impugned before us, are not in excess of powers conferred on him by section 119 of the Ordinance. The petition is, therefore, dismissed but we make no order as to costs.
S. A. H,