SHAMEEM HUSAIN KADRI, J.----The following personal of the Lahore Corporation, namely, M. S. Faruqi, Muhammad Manzoor Ahmed and Mahboob A.I Malik, who were working as Chief Officer, Accounts Officer and Deputy Chief Officer, Lahore Corporation, were transferred as Chief Officer, District Council Multan, Accounts Officer, District Council Lyallpur, and Chief Officer, District Council Sialkot, respectively, by the Secretary, Basic Democracies, Social Welfare and Local Government, Department, vide Notification dated the 7th of August 1967. They have challenged these orders by separate writ petitions (Nos. 1260 of 1967, 1262 of 1967 and 1308 of 1967) in this Court which will de disposed of by this order.
2. Some of the petitioners claimed that they were employed by the then Municipal Committee of Lahore, which was subsequently raised to the status of Lahore Corporation by the City of Lahore Corporation Act, 1941. In view of their appointment in this Local Body, they were only liable to serve in Lahore and they cannot be called upon to serve at any other station beyond the jurisdiction of the Lahore Corporation. Such a posting would tantamount to change in the terms and conditions of their service.
3. Before going into the points raised in the petitions, a reference to the relevant provisions of law on the subject would make the facts feasible to understand. The Basic Democracies Order, 1959 (hereinafter called B. D. O.) was promulgated by the President's Order No. 18 of 1959, which was published in the Gazette of Pakistan, Extraordinary, dated the 27th October 1959, which repeals several enactments mentioned in the First Schedule of the said Order including the Punjab District Boards Act, 1883 (Punjab Act XX of 1883). Similarly, the Municipal Administra--petition Ordinance, 1960 (X of 1960) (hereinafter called M. A. O.) was promulgated by the President of Pakistan on the 11th of April 1960 in order to consolidate and amend the law relating to Municipal administration of Pakistan. The enactments repealed by this Ordinance are mentioned in its First Schedule, which include the Punjab Municipal Act, 1911 (Punjab Act III of 1911), the Punjab Municipal (Executive Officer)
Act, 1931 (Punjab Act II of 1931) and the City of Lahore Corporation Act, 1941 (Punjab Act XV of 1941).
By virtue of section 29, Chapter Y of M. A. O., the following six posts were declared as "specified posts" in the Municipal Committee :--
(1) Chief Officer.
(2) Deputy Chief Officer.
(3) Accounts Officer.
(4) Education Officer.
(5) Taxation Officer.
(6) Social Welfare Officer.
Section 29 of the M. A. O. Mentions legislation by reference to certain provisions of the B. D. O.
Mentioned in Chapter VIII of Part II of the Order. Section 29 of the M. A. O. Is reproduced as under :- "Servants of Municipal Committee.-The Government may from time to time specify the pasts in the Municipal Committees which shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VIII of Part II of the Order, and the other provisions of that Chapter 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."
4. The Government of West Pakistan framed West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963, in the exercise of powers conferred by Article 44 read with Article 89 of the B. D. O. And section 29 read with section 121 of the M. A. O. On the 8th of October 1963, and constituted West Pakistan Local Councils Service under rule 3 of the said Rules. Article 45(1) of the B.
D. O deals with the appointments of certain officers of Local Councils and their transfer from the Local Council to another Local Council. The said Article is reproduced as under :- "Servants of Local Councils.-(I) 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 Local Council who shall perform such functions as are assigned to them in relation to such Local Council by or under this Order.
(2)
(3)
(4)
(5) The prescribed authority may transfer any of the persons appointed under clause (I) from one Local Council to another Local Council within its jurisdiction."
Article 46 of the B.D.O. Deals with provident fund, pensions and other facilities for servants of Local Councils, while Article 47 deals with the powers of the Government for making service rules. It would be relevant to reproduce here clause (a) of Article 47, which is as under :- "47. Service Rules. -The Government may by rules -
(a) prescribe the conditions of service of the servants of Local Council ;
5. By virtue of section 29 of M. A. O. Whenever the word `local council' occurs in Article 45 of the B. D.
O. It will have to be read as a `Municipal Committee', therefore, clause (5) of Article 45 will be read as under :- ---The prescribed, authority may transfer any of the persons appointed under clause (1) from one Municipal Committee to another Municipal Committee within its jurisdiction.--- Article 45 of the B D. O. Was amended by virtue of section 19 of Basic Democracies (Amendment)
Act; 1965 Act (XVI of 1965). The words "Controlling authority" occurring in the Article were substituted for the words "prescribed authority". The Govern--ment of West Pakistan by Notification dated the lath December 1965, promulgated West Pakistan Servants of Local Counsel and Municipal Committees (Prescribed Authority and Prescribed Terms and Conditions, Rules, 1965. According to rule 2 of these Rules, the "Prescribed Authority" for the purposes of Article 45 of the B. D. O. Shall in case of posts to be filled by persons belonging to Local Council service is the one specified in rule 7 of the West Pakistan Local Council and Municipal Committees Service Rules,, 1963, and in case of principal officers not included in the Local Council service will be the Government where the post corresponds to a gazetted post in Government service and in other cases such authority will be the controlling authority. Rule 3 of the said Rules provides the prescribed terms and conditions. The prescribed terms and conditions in the case of posts to be filled by the persons belonging to the Local Council service and for the purpose of Article 45 of the B. D. O. Will be such as are provided under the West Pakistan Local Council and Municipal Committees Service Rules, 1963.
6. Orders of the petitioners' transfer probably have been made by the relevant authorities considering them as members of the Local Council Service They object to their inclusion in this service.
7. Ch. Khalilur Rahman, learned counsel appearing on behalf of his clients, raises the following contentions :-
(i) The transfer Rules are not valid and there is no warrant for framing such rules either in the M. A.
O. Or the B. D. O.
(ii) Article 45 of the B. D. O. Does not form part of the M. A. O. And hence cannot be relied upon ;
(iii) Article 47 is not applicable as transfer is not a condition of service and in case it is so considered, that has been protected by section 4(2) of the M. A. O. ;
(iv) if the transfer is deemed to have been made under Article 45(5) of the B. D. O., the same is illegal as it could only be made within the jurisdiction of the `Controlling Authority' and not that of the `prescribed Authority'. The amendment of made in 1965, substituting the `Controlling Authority' for the `Prescribed Authority' is not retrospective. It is only applicable to servants appointed after the promulgation of Act XVI of 1965 ;
(v) The definition of `Local Council' mentioned in rule 2(h) of the West Pakistan Local Council and Municipal Committees Service Rules 1963, is ultra vires ;
(vi) Rule 8 of West Pakistan Local Council and Municipal Committees Service Rules, 1963, is in conflict with section 29 of the M. A. O., which empowers the Government only to specify the posts in the Municipal Committees and provides the method of appointments to such posts, but it does not weld both the services of the Local Council and the Municipal Committee into one as is envisaged by this Rule, and
(vii) in any case, Muhammad Manzoor Ahmad and Mahbub A.I Malik could not be transferred from a Municipal Committee to a Local Council in view of section 29 of the M. A. O. The rules could not include what has not been legislated by reference from the B. D. O, more especially when there is no provision of Local Councils in the Municipal Administration Ordinance.
8. Malik Shaukat A.I, learned counsel for Mahbub A.I Malik petitioner, however, submitted that section 29 of the M. A. O. Contemplates future employments to the specified posts and it does not apply to the existing employees holding such posts.
9. In order to examine the first contention of the learned counsel a reference is to be made to Articles 45 and 89 of the B. D. O. Article 45 of the B. D. O. Deals with the servants of local Council, while Article 89 of the said order empowers the Government to make rules. Article 89 is reproduced as under "Power to make rules.-(1) The Government may make rules to carry out the purposes of this Order.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in the Sixth Schedule, and all matters incidental, consequential and supplemental thereto."
Item 12 of the sixth Schedule deals with the constitution and regulation of the Local Council Service, while item 13 thereof concerns the regulation of matters referred to in Article 47 pertaining to servants of Local Councils. In addition to the general rule-making powers of the Government, these two items mentioned in the Sixth Schedule amply authorise the Government to frame rules for the Local Council Service. Similarly, section 29 read with section 121, deals with the powers of the Government to frame rules under the M. A. O. A reference in particular is made to the Fourth Schedule of the said Ordinance.
Learned counsel refers to item 8 of the Fourth Schedule of the said Ordinance and argues that it only provides the manner in which a specified post 9n the Municipal Committees shall be filled by the officers belonging to the Local Councils. He has, however, lost sight of item 9 of the said Schedule which provides the framing of rules concerning conditions of service of the officials and servants of the Municipal Committees. The West Pakistan Local Councils and Municipal Committees Service Rules, 1963, are not only rules for the Local Councils, but are also rules for the Municipal Committees. Therefore, the Government is empowered to frame the said Rules and the contention raised by the learned counsel has no force.
9. The submission that Article 44 of the B. D. O. Does not form part of M. A. O. And hence cannot be relied upon, cannot be upheld. Section 29 of the M A. O. Mentions that specified posts in the Municipal Committees shall be filled by persons belonging to the Local Councils Service constituted under Article 44 in Chapter VIII of Part II of the B. D. O. If such a plea is accepted, the Second Part of section 29 becomes redundant which provides that the provisions of that Chapter shall mutatis mutandis apply to the servants of the Municipal Committee as they apply to the servants of Local Councils. This obviously means that specified posts shall have to be filled by personnel of the local council service, which service is created under Article 44 of the B. D. O. The other provisions of Chapter, namely, Articles 45, 46 and 47 of the said Order deal with the servants of the Local Councils in respect to their provident fund, pensions and other facilities and also their service rules. Without reading Article 44 of the B. D. O. As part of the provisions brought in by way of legislation by reference in section 29 of the M. A. O. The entire legislation by way or reference then falls to the ground.
10. In view of the fact that Article 47 of the B. D. O. Is part of section 29 of the M. A. O., it is obviously attracted. If the Government can prescribe terms and conditions of service of the servants of the Municipal Committees, certainly transfer which is a service exigency, its provision had to be kept in the Rules. Thus, right of non-transfer cannot be considered to have been protected by section 4(2) of the M. A. O. This section only saves appointments made under the repealed legislations which in the case of the petitioners were made under the Punjab Municipal Act, 1911, and City of Lahore Corporation Act, 1941. Learned counsel for the petitioners submits that the appointments of the petitioners made under the Punjab Municipal Act, 1911, and City of Lahore Corporation Act, 1941, provide that the petitioners will only serve within the area of Lahore Corporation and the persons appointed to these posts cannot be transferred to any other place outside the precincts of the Lahore Corporation In support of his submission, he cites Government of West Paki Stan v. A. A. Aziz (PLD 1966 SC 188). Dr. A. A. Aziz was specialist appointed to a special post after the integration of West Pakistan and it was held that proviso (b) to section 23(3) of the Establishment of West Pakistan Act, 1955, was inapplicable in his case. The dictum of their Lordships of the Supreme Court cannot be attracted to the instant case since the petitioners had accepted service under the Municipal Administration Ordinance.
1960. Though their appointments have been protected by C section 4(2) of the M. A. O. Yet they cannot claim as of right, to serve in the Lahore Corporation in particular in view oft section 29 of the said Ordinance.
11. There can be no doubt that transfers are provided by Article 45(5) of the B. D. O. Which forms part of section 29 of the M. A. O. By way of legislation by reference. The 'Controlling Authority' having been substituted by the 'Prescribed Authority' by Act XVI of 1965 certainly empowers the Government to order the petitioners' transfer in the whole of West Pakistan after passing of the said Act. Since the petitioners continued their service after the promulgation of the M. A. O., and section 29 of the said Ordinance provides transfer from one Municipal Committee to another Municipal Committee within the prescribed territory of the Controlling Authority, in view of legislation by reference, the petitioners are liable to be transferred of within that territory alone. The amendment made in Article 45 of the B. D. O. By virtue of Act XVI of 1965, whereby the words 'Controlling Authority' were substituted with the words 'prescribed authority' cannot be incorporated in the M. A.
O. By way of legislation by reference, because whatever was the position of Article 45 at the tune of the promulgation of the M. A. O., that alone formed part of the said Ordinance. The words 'had been enacted' in this Ordinance occurring in the last line of section 29 before its clause (a) amply support this view. When certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. Any subsequent change in Article ; 45 of the B. D. O., therefore, would not automatically form part of the M. A. O. A t R 1931 P C 149 is referred. In fact, this is the draw-back of legislation by reference. Members of the Local Councils service created under Article 44 of the B. D. O. Can no doubt be transferred throughout West Pakistan on account of this change in law, but this subsequent amendment is only applicable to persons employed under the B. D O and cannot affect servants of the Municipal Committees employed under the M.A.O.
12. The submission of the learned counsel that the definition of 'Local Council' as given in rule 2(h) of the West Pakistan Local Council and Municipal Committees Service Rules, 1963, exceeds the definition of the `Local Council' given in the B. D. O. And there being no other reference of 'Local Council' in the M. A. O. The definition in the Rules is thus ultra vires. This has to be examined with reference to the two enactments. 'Local Council' is defined in Article 3(24) of the B. D. O. Which reads as under :- "3. Definition.-1n this order, unless there is anything repugnant in the subject or context,
(24) `Local Council' means a council constituted under this order, and includes Union Council, a Town Committee and a Union Committee, but does not include any such Committee as is mentioned in Article 30."
Article 9 of the B. D. O. Mentions the different `Local Councils' created under the said Order. This is also reproduced as under :- "9. Local Councils.-(1) The Local Councils under this order shall be the following, that is to say-
(i) A Union Council for a Union in rural areas ; and a Town Committee for a Town or a Union Committee for a Union in urban areas ;
(ii) A thana Council for a Thana in East Pakistan ; and a Tehsil Council for a Tehsil in West Pakistan ;
(iii) A District Council for a District ; and
(iv) A Divisional Council for a Division.
(2) A Union Council or a Union Committee shall be known by such local name as the Controlling Authority may assign, and the other Councils shall be known by the name of the Town, Thana, Tehsil, District, or Division concerned."
It is true that the 'Local Council' has not been defined in M. A. O. Section 29 of the said Ordinance only deals with Municipal Committee. By way of legislation by reference, however, Chapter VIII, Part II of the B. D. O., has been brought in this Ordinance. `Local Councils' in the B. D. O. Therefore, will have to be read as Municipal Committees according to clause (a) of section 29 of the M. A. O. It cannot, however, be read as 'Local Councils' (or 'Municipal Committees'. The confession probably has arisen on account of the wrong interpretation of Article 45(5) of the B. D. O. As incorporated in the M. A. O. Mr. Masud-ul-Hassan the learned author of the Manual of Municipal Administration Law and Practice, in his book at page 159, has interpreted it in this manner which is reproduced as under :- "The prescribed authority may transfer any of the persons appointed under clause (1) from one Local Council or Municipal Committee to another Local Council or Municipal Committee within its jurisdiction."
The Rules have, therefore, been framed probably keeping in view this interpretation of clause (5) of Article 45, which is wholly incorrect. When Article 45(5) is to be read as legislation by reference in pursuance of clause (a) of section 29 of the M. A. O., it is abundantly clear that in case of 'Local Council', 'Municipal Committee' has to be read. Therefore, clause (5) of Article 45 of the B. D. O. Will have to be read only in the following manner :- "The prescribed authority may transfer any of the persons appointed under clause (1) from one Municipal Committee to another Municipal Committee within its jurisdiction."
Argument of Ch. Khalil-ur-Rehman has considerable force when he says that the definition of `Local Council' has certainly been of widened in the Rules and it is inconsistent with the M. A. O.
Therefore, rule 2(h) of the West Pakistan Local Council and Municipal Committees (Service) Rules, 1963 is ultra vires.
13. There is equally good force in the submission of the learned counsel for the petitioners that rule 8 of the West Pakistan Local Council and Municipal Committees (Service) Rules, 1963, is in conflict with section 29 of the M. A. O., which only empowers the Government to specify the posts in the Municipal Committees and the method of appointments to such posts. It does not, however, weld into service the personnel serving under the Municipal Committee and the Local Councils, as defined in the B. D. O. The absorption of the servants of the Municipal Committee and the Local Council under rule 8 exceeds the provisions of section 29 of the M. A. O. No doubt specified posts in the Municipal Committee shall have to be filled by the persons belonging to the Local Council Service, but both the categories of servants cannot be absorbed into one service, unless amendment is made in Article 9 of the B. D. O. And Municipal Committee is included in that or necessary amendment is made in section 29 of the M. A. O. So as to include `Local Councils' as well.
The difficulty has arisen obviously on account of legislation by reference in the M. A. O. The term `Local "Council" has to be read as Municipal Committee and `Local Council' cannot be considered to have included `Local Council' as well as Municipal Committee in Article 45(5) of the B. D. O. I am fortified in this view as was laid down in State v: Muhammad Riaz-ul-Haq (PLD 1964 SC 434).
14. The last submission of Ch. Khalil-ur-Rehman has already been dealt with in the above paragraph. It is quite obvious that persons serving in the Municipal Committees cannot be transferred to Local Councils, but they can certainly be transferred from one Municipal Committee to another Municipal Committee within the jurisdiction of their Controlling authorities.
15. The contention raised by Malik Shaukat A.I, learned counsel appearing on behalf of Mahbub A.I Malik, petitioner, that section 29 of the M.A.O. Contemplates only future employments of the specified posts and it does not apply to the existing employees serving on such posts, cannot hold water for the simple reason that the moment the posts were specified by the Government, they will have to be manned by personnel of Local Councils Service. None other can hold these specified posts.
16. The learned Advocate-General vehemently opposed the contention above raised by the petitioners' counsel, but we are not persuaded to agree with his submissions. Another objection has been raised by the learned Advocate-General that the petitioners cannot challenge the orders in view of the restriction mentioned in Article 98(3)(b) of the Constitution Act. We feel, that there is no force in this submission of the learned Advocate General. The petitioners are not members of the Pakistan Service which has been defined in Article 242 of the Constitution Act. The petitioners are only Municipal servants and if they are considered to be members of Service of Pakistan, then they would be entitled to the Constitutional guarantees available to the Civil Service of Pakistan to which the learned Advocate-General does not agree. He has frankly conceded that the petitioners cannot have the Constitutional guarantees as are available to the persons in the Service of Pakistan. Municipal servants are surely employees of `Local Authority' which is amenable to the jurisdiction of this Court under Article 98(2)(a)(ii) of the Constitution. If an act is done without lawful authority by an `Local Authority', the High Court can declare such an act of n legal effect. In Deputy Managing Director, National Bank of Pakistan and others v. Ataul Huq (PLD 1965 SC 201) their Lordships of the Supreme Court made a clear distinction between the `Local Authority' and `Corporate Bodies'. The observations at page 206 is reproduced as under ---The expression `Local Authority' has been used in statutory phraseology in the Indian sub- continent for a great many years, and is always understood to mean an authority which is entrusted with the administration of a local fund. Local authorities are bodies exercising within limited territories included in a Province, powers which belong to the Province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self--- Government and has power of making bye-laws of imposing taxation, and of maintaining and administering a local fund.--- The functions of the `local authority' are more or less of civic nature and they have to provide amenities to the citizens living within their area for which they are entitled to raise taxes.
17. The terms and conditions of the employees of these `local authorities' are governed by statutory rules and any violation of these rules would be subject to the supervisory jurisdiction of this Court.
Where orders suffer from inherent vice, they are void ab initio and cannot be given effect to. In Ijlas Ahmad Siddiqi v. The Municipal Committee Multan (PLD 1967 Lah. 408) similar view was taken by our learned brother Muhammad Gul, J. Sitting with Mr. Justice Sajjad Ahmad as his Lordships then was. The relevant observations is as under :- "Before we part with this case, we would like to enter a caveat. We should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason void ab initio."
18. Before I part with the case, I want to make it clear that this Court would not like to interfere in the matters of transfer of public servants which is normally an exigency of service, but in this case the Government has passed these orders on the basis of statutory rules which are directly in conflict with of the Municipal Administration Ordinance and as such, they are void ab initio. As I have already observed above that these persons can be transferred from one Municipal Committee to another Municipal Committee within the jurisdiction of its Controlling Authority, my finding cannot be presumed to be one which has interfered with matters of transfer. By necessary amendment of the law, the persons serving in the `Local Bodies' can be made liable to transfer as was intended by the West Pakistan Local Council and Municipal Committees (Service) Rules, 1963.
19. For the foregoing reasons, I accept these writ petitions and grant a declaration to the effect that the orders in question were made without lawful authority. In view of the complicated question of law involved in this case, I leave the parties to bear their own costs.
K. E. CHAUHAN, J.----I have gone through the judgment of my learned brother and I respectfully fully agree with him. However in view of the importance of the matter and the arguments addressed before us, I would like to add a few words of my own.
2. The subject of transfer of Municipal employees is contained in two places. Firstly, it is contained in section 29 of the Municipal Administration Ordinance X of 1960 (hereinafter called the M. A. O.), which so far as relevant for the purposes of our case says, "and the other provisions of that Chapter" (that is Chapter VIII of Part II of the Basic Democracies Order 18 of 1959 (hereinafter called the B. D. O.) "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" further states that, "(a) any reference to a Local Council were a reference to a Municipal Committee ; (b) any reference to the Controlling Authority were reference to the Controlling Authority under this Ordinance ; (c) any reference to the order were reference to this Ordinance ; and (d) any reference to Secretary included a reference to Chief Officer." The Articles of B. D. O., which in this way have been applied, are Articles 45, 46 and 47. In the table below, in the first column are reproduced those Articles in the form in which they exist in the B. D. O. And in the second column in the form in which they will have to be read when applied under section 29 of the Municipal Ordinance 10 of 1960 :- 123 As it should read when Article As it exists in B. D. O. Transplanted in the Municipal Ordinance 1960 as directed in its S. 29.
"45(1). The Controlling Authority 45(1). The Controlling authority may on the prescribed may on the prescribed terms' and terms and conditions conditions appoint a a appoint a Secretary and one Secretary, Chief or more Principal Officers Officerand one or to be the servant of a more Principal Officers local council who shall per-to be the servants of a form such functions as are Municipal Committee assigned to them in relation who shall perform to such local council by or such functions as are under this Order. Assigned to them in relation to such Muni-- cipal Committee by or under this Ordinance.
(2)A local council may, and if(2) A Municipal Committee so required by the may, and if so required Controlling Authority by the Controlling shall, on the prescribed Authority shall, on terms and conditions, the prescribed terms employ such other servants and conditions, em--- as are deemed necessary ploy such other for the efficient perfor-servants as are deemed mance of its functions necessary for the under this Order efficient performance of its functions under this Ordinance.
(3)If, in the opinion of the(3) If, in the opinion of Controlling Authority, the the Controlling Autho--- number of servants em rity, the number of ployed by a Local Council servants employed by under clause (2), or the a Municipal Committee remuneration fixed for any under clause (2) or of them, is excessive the the remuneration fixed local council shall, on for any of them is being required by the excessive the Municipal Controlling Authority to do Committee shall on so, reduce the number of being required by the its servants or the rein-Controlling Authority uneration of any of them, to do so, reduce the as the case may be number of its servants or the remuneration of any of them, as the case may be.
(4)Subject to the provisions(4) Subject to the of this Order and the provisions of this rules Ordinance and the rules----
(a) the Controlling Authority(a) the Controlling Autho-- may suspend, remove, rity may suspend, dismiss or otherwise punish remove, dismiss or any person appointed otherwise punish any under clause (1) and person appointed under clause (1)
(b) the local council may (b) and the Municipal suspend, remove, dismiss or Committee may suspend, otherwise punish any --remove, dismiss or person appointed under otherwise punish any clause (2).Person appointed under (5)The Controlling Authority(5) The Controlling may transfer any of the Authority may transfer persons appointed under any of the persons clause (1) from one local appointed under council to another local clause(1) from one council within its jurisdic--Municipal Committee petition to another Municipal Committee within its jurisdiction.
46(1)-A Local Council may 46(1). A Municipal Com--- establish and maintain amittee may establish Provident Fund and and maintain a require any of its servants Provident Fund and to contribute to it in such require any of its manner and proportion as servants to contribute may be prescribed to it in such manner and proportion as may be prescribed.
(2)A Local Council, may, in(2) A Municipal Com--- the prescribed manner and mittee, may in the with the previous sanction prescribed manner of the Government provide and with the previous for the payment of sanction of the pension to its servants after Government provide retirement. For the payment of pension to its servants after retirement.
(3)A Local Council may with(3) A Municipal Co- the previous sanction of mittee, may with the the Government grant a previous sanction of special pension or gratuity the Government grant to the family of any servants a special pension or who dies of disease or gratuity to the family injury contracted or suffer- of any servants who ed in the discharge of dies of disease or official duties injury contracted or suffered in the dis--charge of official duties.
(4)A Local Council may, is(4) A Municipal Com--- the prescribed manner mittee, may in the operate a scheme of social prescribed manner insurance for its employees operate a scheme of and require its employees social insurance for to subscribe to it its employees and require its employees to subscribe to it.
(5)The Government may, in(5) The Govt. May, in the the prescribed manner;prescribed manner, establish and maintain, establish and maintain,--
(a) a Local Council(a) A Municipal Com--- Service Fund for the mittee service for maintenance of the the maintenance Local Council Service;of the Muni--- cipal Committee Service ;
(b) a Pension Fund out(b) a Pension Fund of which shall be paid out of which shall any pension granted be paid any under clause (2) ; pension granted under clause (2) and
(c) a Benevolent Fund out(c) a Benevolent Fund of which shall be paid-"'out of which shall any special pension be paid any special or gratuity granted pension or gratuity under clause (3) or granted under such other relief as clause (3) or such may be prescribed other relief as may be prescribed.
(6)The local councils shall(6) The, Municipal Com--- contribute to the Funds mittees shall con-- established and maintained tribute to the Funds under clause (5) in such established and main--- proportion or such amount tained under clause (5) and in such manner as in such proportion or may be specified by the such amount and Government in such manner as may be specified by the Government.
47. The Government may be47. The Govt. May by Rules,-Rules,-
(a) prescribe the con-(a) prescribe the con-- ditions of service of ditions of service servants of Local of the servants of Council. Municipal Com--- mittee.
(b) prescribe the grades(b) prescribe the of pay of the servants grades of pay of of local councils. The servants Of- Municipal Com--mittee.
(c) prescribe a schedule(c) prescribe a sche--- of establishment dule of establish-- setting forth the staffment setting forth. that shall be employed the staff that shall, by local councils. Be employed by Municipal Com-- mittees.
(d) prescribe the qualifica-(d) prescribe the tions for various posts qualifications for under local councils. Variousposts under Municipal Committees.
(e) prescribe the principle(e) prescribe the to be followed in principle to be making appointments followed in making to various posts under appointments to local councils. Variousposts under Municipal Committees.
(f) prescribe the method(f) prescribe then for the holding of method for the enquiries in cases holding of enquiries where disciplinary in cases where action is proposed to disciplinary action be taken against is proposed to be servants of local taken against; councils and provide servants of Muni--- for penalties and cipal Committees appeals against orders and provide for imposing penalties. Penalties and appeals against orders imposing penalties.
(g) provide for other(g) provide for other matters necessary formatters necessary the efficient discharge for the efficient of their duties by the discharge of their servants of local dutiesby the councils. Servants of Munici--- p.I Committees."
Note.-(1) In the B. D. O. For the terms "Controlling Authority" was substituted by the words "Prescribed Authority",, by section 19 of Act XVI of 1965.
(2) Clauses (5) and (6) in Article 46 of the B. D. O. Were added by Basic Democracies (Amendment) Act, 1965 (Act XVI of 1965.
(3) As laid down in Secretary of State for India v. Hindustan Co-operative Insurance Society Limited AIR 1931 P C 149 ; the subsequent amendments in the B. D. O., herein mentioned cannot be read into the M. A. O. The matter has been dealt with by my learned brother and I need not dwell upon it any further.
3. A comparative study of the aforesaid and, especially Article 45(5) will show
(a) that the employees of one Local Council are liable to transfer to another Local Council ;
(b) that the employees of one Municipal Committee are liable to transfer to another Municipal Committee ;
(c) that the employees of a Local Council cannot be transferred to the Municipal Committee. This is so, because in addition to the discussion hereinafter to be made and the reasons hereinafter to follow, in section 29 of the M. A. O., which has made the aforesaid provisions of the B. D. O., a part of the M. A. O. It is written that, "any reference to a Local Council were a reference to a Municipal Committee," which shows that for the word "Local Council", word "Municipal Committee" is to be read and substituted ; and not that in the word "Local Council", word "Municipal Committee" is to be added. The process adopted, to say in other words, is one of substitution and not of inclusion or addition ; and
(d) that the institution from which and to which the transfer is made both, must be within the jurisdiction of the Controlling Authority, which is to pass the transfer orders. In other words, the transfers are confined to and restricted within the territorial region of the Controlling Authority concerned. If for example, the Controlling Authority for any Local Council is the Commissioner, then he can make transfer to another Local Council within his division, of which Local Council also he is the Controlling Authority. Similarly, if the Controlling Authority for any Local Council, is the Government, then it can make transfer to another Local Council of which also it is the Controlling Authority. Same will be the position when this law is applied to Municipal Committees' Employees. If in any case, the Commissioner is the Controlling Authority of a Municipal Committee then, he can make transfer within his division to another Municipal Committee of which he is also the Controlling Authority. If in any case the Government is a Controlling Authority of a Municipal Committee, then it can make transfer to another Municipal Committee of which again it itself is the Controlling Authority.
4. The second place, where the matter of transfer is contained is rule 6 of the West Pakistan Local Council and Municipal Committee (Service) Rules, 1963. These rules are a composite sort of rules as they have been framed both under Articles 44 and 89 of the B. D. O., and also under section 29 read with section 121 of the M. A. O. These rules brought into being a Service called "West Pakistan Local Councils Service". The service was to consist of three classes, namely, Class 1, Class II and Class III, and each class was to have two Grades, the Senior Grade and the Junior Grade (See rule 4). From the point of view of Cadrization, the Service has four cadres, namely,
(i) a provincial cadre of the posts in the Senior Grade of Class I ;
(ii) regional cadres of the posts in the Junior Grade of Class I and Senior Grade of Class II ;
(iii) divisional cadres of the posts in the Junior Grade of Class II and Senior Grade of Class III ; and
(iv) district cadres of the posts in the Junior Grade of Class III.
Members of one cadre of the Service are not eligible for appoint--ment to a post borne on any other cadre of the Service. (See rule 5). After these Rules, comes rule 6, which reads as follows :- "6. Transfers.-(1) Members of the Service in the Senior Scale of Class I, shall be liable to transfer anywhere in West Pakistan, and to serve under any Local Council in the Province.
(2) Members of the Service in the Junior Grade of Class I and Senior Grade of Class 11, shall be liable to transfer any--where in the region and to serve under any Local Council in the region.
(3) Members of the Service in the Junior Grade of Class II and Senior Grade of Class III shall be liable to transfer anywhere in the division and to serve under any Local Council in the division.
(4) Members of the Service in the Junior Grade of Class III shall be liable to transfer anywhere in the district and to serve under any Local Council in the district."
This rule is to be read with rule 2(h) which defines "Local Council" and states that it "means a council constituted under the Basic Democracies Order, 1959, and includes, for the purposes of these rules, Municipal - Committees constituted under the Municipal Administration Ordinance, 1960."
It is by virtue of this definition clause that authority is claimed for transferring employees of one Municipal Committee constituted under the M. A. O., not only to another Municipal Committee but also to a Local Council, which is a creation purely of the B. D. O. In my opinion, this cannot be allowed to be done and rule 6 and rule 2(h) in this way are ultra vires. My reasons for so holding are as follows :-
(i) Word "Local Council" is defined in Article 3(1)(24) of the B. D. O. So as to mean, "A council constituted under this Order and includes Union Council, a Town Committee and Union Committee ; but does not include any such Committee as is mentioned in Article 30." (Article 30 in the Original B. D. O. Contemplated setting up of Union Development Advisory Committees). What rule 2(h), therefore, does, is that it defines the said word differently from how it is defined in the statute and by so doing changes its whole concept. It is well-settled that words used and defined in the statute, cannot be differently defined in the Rules made under the said statute.
(ii) Word "Municipal Committee" is defined in section 3(1)(24) of the M. A. O., as to mean, "a Municipal Committee constituted under this Ordinance by whatever name called." This institution, as the definition shows, is a creation of this Ordinance itself and cannot embrace in it a "Local Council", which is not the creation of this Ordinance.
(iii) As already indicated earlier when word "Municipal Committee" was substituted in Article 45(5) of, the B. D. O. While transplanting it in the M. A. O., it could not mean A "local council". The process adopted was of substitution of one word for the other and not of adding something into the same.
(iv) In section 3(2) of the M. A. O., it is written that the "Words and expressions used but not defined in this Ordinance shall, unless the context otherwise requires, have the meaning 1 assigned to them in the Order". This shows that the definitions contained in the two enactments were retained intact and no change was intended to be brought about in them ;
(v) Rule 6, so far as Employees of Municipal Committees are concerned, shall have to be considered to have been made under sections 29 and 121 of the M. A. O., but where Employees of Local Councils are concerned, it shall fall under Articles 44 and 89 of the B. D. O. So far as Municipal Committees' Employees are concerned, therefore, their transfers under section 29 of the M. A. O.
Would be possible to another Municipal Committee and so far as Local Councils Employees are concerned, it will be possible only to another Local Council ; because power to make rules under section 121(1) of the M. A. O was confined only to carry out the purposes of the Ordinance. The purpose of the Ordinance on the subject in hand had been indicated in section 29 (read with Article 45(5) of the B. D. O., in its transplanted form in the M. A. O.). Rule 6 in this respect, however, exceeds both the aforesaid Statutes and is ultra vires of their respective provisions. Ultra vires rule or law is no law and it can be ignored by any one, against whom it is sought to be applied, with immunity. The petitioners who are being dealt with by this law, namely, rule 6, are clearly, eligible to obtain a declaration that the said rule being invalid and not a law, they should not be dealt with by the same.
(vi) The view that to the Municipal Employees applied only the M. A. O. And its section 29, has also the support of the Supreme Court in The State v. Muhammad Riaz-u1-Haq PLD 1964 SC 434, where it was held that the B. D. O. And the rules made thereunder could not govern such employees.
5. When confronted with this situation, Raja Said Akbar Khan, learned Advocate-General, argues that the present writ petition under Article 98 of the Constitution was not maintainable. He submitted that under Article 98(3)(b), "an order shall not be made under Clause (2) of this Article on application made by or in relation to any other person in the service of Pakistan, in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution". Elaborating the argument, he stated that the petitioners are the Members of the West Pakistan Local Council Service, as constituted under the West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963. According to Raja Said Akbar Khan, the matter of transfer of the members of this service is not such a term and condition of their service, which is specified in the Constitution and, therefore, no application in respect thereof can be filed under Article 98. The argument advanced no doubt is attractive, but, in my opinion, is not towards the right direction. In Article 174 of the Constitution, it is written that, "subject to this Constitution, the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan may be regulated by law". In Article 178(2) so far as relevant for our case, it is written that :- "Subject to this Constitution and law, the terms and conditions of service of persons serving in a civil capacity in the service of Pakistan (other than persons whose terms and conditions of service are specified in this Constitution) shall be as prescribed- (a)
(b) in the case of a person (not being a Member of an All Pakistan Service), who is serving in connection with the affairs of a Province, by rules made by the Governor of the Province, or by a person authorised by the Governor in that behalf."
If the aforesaid provisions are read together, then it means that terms and conditions of Service of persons serving in a civil capacity, in the Service of Pakistan, shall be prescribed by Rules (and to reiterate the relevant wordings of Articles 174 and 178 ibid), which shall be "subject to this Constitution and law". In other words, if there is any provision in the Constitution which is to be followed in that behalf, or if there is similarly any law, with regard thereto, then the rules shall be subject to the said provisions of the Constitution and the Law and shall be framed accordingly. If in a given case, the Service Rules for example; exceed the relevant statute, under which they are made on any particular matter or in any particular respect, then the said Rules cannot be called Rules which have been made in accordance with law as directed by the Constitution and to the extent of being ultra vires will be a sheer nullity. If anybody who is thus sought to be dealt with by those Rules, files a writ petition and says that his constitutional right to be dealt with only by such rules which were to be made in accordance with law, has been violated, then he certainly can get enforced the aforesaid mandate of the Constitution and his case cannot be thrown out on the kind of the objection which is being raised by the learned Advocate-General. To further elucidate, the matter may be stated in a still simpler form and that is that the Constitution has specified (so far as relevant for the present discussion), two things, in Articles 174 and 178. The first is that terms and conditions of service may be regulated by Rules. The second is that the Rules must be subject to the Constitution and the law. If the Rules are not in accordance with law, then the specification made by the Constitution that they should have been in accordance with law, stands violated and the case is out of the barrier of sub-Article (3)(b) of Article 98. Here, I may point out that there is a vital difference between saying that such and such terms and conditions of service have been violated on the one hand, and urging on the other hand that such and such terms and conditions, as laid down in any Service Rules, are against the Constitution or against the Law which was directed by the Constitution to be kept in view in that behalf and, as such, they do not constitute the applicants' terms and conditions of service and should not be enforced. In the first case, it is the terms and conditions themselves, which are sought by a petitioner, under Article 98, to be applied or not to be applied to his case on their own interpretation ; while in the latter case, it is the very constitutionality of the terms and conditions which is brought in the forefront. In the first case, there is no doubt about the applicability of the relevant terms and conditions and the question is merely about their scope, inter--pretation or propriety of any order passed on their basis. In the second class of cases, since the very constitutionality of terms and conditions is debated, it is begging the whole question as to whether they constitute terms and conditions at all. That sub---Article (3)(b) of Article 98, is no bar to cases of the present kind can be demonstrated by comparing it with sub- Article (3)(a) of the same Article. Both these articles, when put in a graphic form, against one another, read as follows :- Article 98 (3)(a)Article 98 (3)(b)
An order shall not be passed An order shall not be passed under Class (2) of this under Class (2) of this Article. Article.
I (i) On application made by I (i) On application made by a person in the Defence any other person in the Services of Pakistan, or service of Pakistan ; or Article 98(3)(a) Article 98(3)(b) of
(ii) On application made in(ii) On application made in relation to a person in relation to a person in the Defence Services of the Service of Pakistan.
Pakistan.
11. (i) In respect of his termsII. (i) In respect of his terms and conditions of service ; and conditions of service except a term or condition of service that is specified in this Constitution.
(ii) 1n respect of any matter(ii) No corresponding clause. arising out of his service; or
(iii) In respect of any action(iii) No corresponding clause. taken in relation to him as a member of the Defence Services of Pakistan.
Studying in this comparative form, it appears to be that it is only the contingency shown in the underlined portion which is common both in the cases of Defence Service and (Civil) (bracket is mine) Service of Pakistan. With regard to both these services, an order under Article 98(2) shall not be passed by the High Court in the contingency mentioned therein. The said contingency arises when an application is made by or in relation to a person in the Defence Service of Pakistan, or in the (Civil) Service of Pakistan in respect of his terms and conditions of service. The word "his", in my opinion, is very significant. It shows that the terms and conditions in respect of which application is filed are admittedly "his" (terms and conditions of service). If any provision of any law or rule is sought to be enforced against or applied to him and he says that it is not his term and condition of service and cannot be applied to him, then the case is outside the clutches of sub-Article (3)(b) ibid. Again a comparative study of sub-clauses (a) and (b) of Sub-Article (3), reproduced above, shows that whereas in the case of Defence Services, bar is complete and all embracing in the case of Civil Employees that is riot so. As for example, whereas in the case of a "Defence Employee" it is written that no order can be made
(a) in respect of any matter arising out of his service ; or
(b) in respect of any action taken in relation to him as a Member of the Defence Services of Pakistan.
These bars are not imposed against Civil Servants. They can bring a writ petition in respect of any matter arising out of their service or in respect of any action taken in relation to them and the only bar is, that when it is a petition, with regard to their terms and conditions of service, then the terms and conditions should be such which are specified in the Constitution. When, however, the writ petition is not confined to "his", terms and conditions of service, but deals with other matters, arising out of "his" service or challenges any action taken in relation to him as a member of (civil) service, then the same can be challenged in the High Court provided he makes out a case on its own merits. Take for example, a case where a Service Rule provides that the Municipal Employees shall fight against one another to death and whosoever refuses to obey such a direction shall be inflicted a fine of Rs. 1,00,000.00 (Rupees one lac only). If an Authority gives such a direction to the said employees and they come to this Court to seek a direction that the order of the Controlling Authority is illegal on the ground that such a condition of service could not validly constitute their condition of service and that the same should be so declared, could such a petitioner be told that since the matter is contained in his terms and conditions of service in the form of Rules and since such a term or condition is not specified in the Constitution, therefore, this Court is powerless to give any relief to him ? In my opinion, this was never the intention of sub-clause (b) of sub---Article 3 of Article 98 of the Constitution. The example which I have just given is not quite out of place. In section 115 of the M. A. O., it is written that, "Every act or omission specified in the Second Schedule shall be an offence under this Ordinance," penalties for which are provided in section 116 of the said Ordinance. Item No. 60 of the Second Schedule specifies the following as an offence, namely" Being an Officer or Servant declared by the Municipal Committee to be an essential officer or servant to be absent from duty, or to neglect or refuse to perform any of the duties or to perform them wilfully in an inefficient manner. "Similarly, item No. 62 makes the following as an offence, "Contravening any of the provisions of this Ordinance, roles or bye-laws, or of any order, direction, notice or declaration made or issued thereunder". Now if in some service rule a duty of the kind given by me in the example hereinbefore mentioned is laid down, then possibility of a situation demonstrated by me cannot be ruled out. However, be that as it may, all I mean to say is that sub-Article (3) (b) of Article 98 of the Constitution, does not debar relief to a petitioner when he challenges the vires of any service rule on the ground that it has been framed in r violation of the mandate contained in Article 174 of the Constitution. In Muhammad Anwar v. M. A. Bajwa, Collector Sargodha District and another (PLD 1962 Lah. 935), it was held that if the order of removal, dismissal etc., passed by the Controlling Authority or Municipal Committee suffered some material defect, the High Court would be competent to issue an appropriate writ, the object of which would be to ensure that the officer who purported to dismiss the servant on the ground that he had not acted according to law, did not himself contravene the provisions of the relevant law.
6. I have dealt with the objections of the learned Advocate---General on the assumption that the petitioners were in the "Service of Pakistan". However, my own considered opinion is that Servants of Municipal Committees cannot be said to be in the "Service of Pakistan" and the bar contained in clause (b) of Sub-Article (3) of Article 98 is not applicable to Municipal servants or municipal employees. The phrase "Service of Pakistan" is defined in Article 242 of the Constitution so as to mean "any service, post or office in connection with the affairs of the Centre or of a Province and includes All Pakistan Service, any defence service and any other service declared to be a service of Pakistan by or under an Act of the Central Legislature or of a Provincial Legislature, but does not include service as Speaker, Deputy Speaker or other member of an Assembly or as a Parliamentary Secretary. "This shows that the service, post, or office, must be such which is in connection with the affairs of the Centre or of a province as distinct from the affairs and functions of a Municipal Committee. The true test to determine whether a person holds post under the Government, is primarily to be determined in relation to the functions which he performs if his duties relate to activities which fall directly within the sphere of the Government, and his services are under the direction and control, as also his appointment is, by the Government, then his case can be covered by the phrase "Service of Pakistan". But if the sphere of activity of the person falls within the sphere of activity of a Local Authority, constituted by a Statute, having a separate legal entity, then his case falls outside the aforesaid phrase, even though the Government control some of his activities or give his directions in the discharge of his functions. In section 7 of the M. A. O., it is written that the Government may declare any urban area to be a Municipality. In section 8, it is stated, that for every Municipality, there shall be constituted a Municipal Committee in accordance with the provisions of the Ordinance. Subsection (2) of section 8 states that, "every Municipal Committee shall be a body corporate, having perpetual succession and a common seal, with power, subject to the provisions of this Ordinance and the rules to acquire and hold property both movable and immovable, and shall by its name sue and be sued". In section 18, it is laid down that subject to rules and such directions as the Government may from time to time give within the limits of the funds at its disposal, a Municipal Committee shall undertake such of the functions given in detail in Part IV as are required to be undertaken by Municipal Committees and may undertake (a) all or any of the functions so given, which may be undertaken by a Municipal Committee, and (b) such other functions as are declared by the Government to be appropriate matters for administration by Municipal Committees generally or by any particular Municipal Committee. In section 31, it is laid down that for every Municipal Committee, there shall be formed a fund which shall be known as the Municipal Funds. All this goes to show that a Municipal Committee is a Statutory Body or a Local Authority, which has its independent sphere of activities. A Statutory Corporation, which is an independent body, is not a part of the Government s and an employee of the Corporation cannot be said to be Government Servant for the purpose under discussion. The servants of a Municipal Committee or other similar Authority cannot be said as holders of a Civil Post under the Government. For case-law, reference can be made to Mohammad Ahmad Kidwai v. Chairman, Improvement Trust, Lucknow (AIR 1953 All. 353), State of Punjab and others v. Preen Parkash and others (AIR 1957 Pb. 219), Mangal Sain, v. The State of Punjab and another (AIR 1962 Pb. 58), Subodh Ranl an Ghosh v. Sindri Fertilisers and Chemicals Ltd. And another (AIR 1957 Pat. 10).
Chaturbhuj Sahat v. Chairman, Board of Directors Bihar State Co-operative Bank Ltd. Patna (AIR 1955 Pat. 223), Nagendra Kumzr Roy Asstt. Executive Engineer v. Commissioner for the Port of Calcutta and others (AIR 1955 Cal. 56), Bindaraban v. The State of Himachal Pradesh (AIR 1953 Him. Prad. 103), Tejbhan Chowdhury v. Rajpura Development Board, Rajpura (AIR 1953 Pepsu 99), Rangnath Misra v. Chairman District Board, Saharsa (AIR 1957 Pat. 333), Sh. Ram Piari v. Municipal Committee Pothankot and another (AIR 1956 Pb. 220). And Kishori Lal Batra v. The Punjab State (AIR 1958 Pb. 402), which are all cases under the corresponding provisions of the Indian Constitution.
So far as Pakistan case-law is concerned, reference may be made to Mir Allah Bakhsh v. District Board, Rawalpindi (PLD 1951 Lah. 52), which held that an Overseer employed by the Municipal Committee Murree was not a Civil Servant. In Abdul Gharur v. The Thal Development Authority, Jauharabad (PLD 1958 Lah. 169), it was held that an Overseer in the Thal Development Authority was not a Civil Servant. In Mirza Muhammad A.I v. Commissioner Lahore Division and others (PLD 1960 Lah. 641), it was held that no Municipal Servant is a Civil Servant. Syed Ghulam Mohiuddin v.
The Board of Trustees of the Karachi Port Trust and others (PLD 1957 Kar. 482), it was held that a Clerk of the Board Trust was not a Civil Servant. In the face of this abundant case-law, the plea of Raja Said Akbar Khan, to apply Article 98 (3)(b) of the Constitution, to the Municipal Servants on the ground that they were in the service of Pakistan is too late in the day to be given any credence.
Applying the said principles to the facts and the circumstances of the present case the petitioners, who are Municipal Employees and are paid from Municipal Funds, cannot be said to be in the Service of Pakistan. The very Rules of 1963, which have been framed for them are called West Pakistan (so far as relevant for our purpose, Municipal Committee (Service) Rules, 1963, which shows that they are in the employ of the Municipal Committee and not the Government. The very sections under which these Rules are framed, namely, section 29 and section 121, read with entries Nos. 8 and 9 of the Fourth Schedule of the M. A. O., refer to them and use expressions like the "Servants of the Municipal Committees" and "Posts under the Municipal Committees" etc. Merely, therefore, that there was constituted a West Pakistan Local Council Service, which was to be manned inter alia by Municipal Committee Servants and Employees, who were to hold and occupy various posts under the M. A. O. Etc., does not mean that they could come within the "Service of Pakistan", as this term is defined in the Constitution. See also Dr. Abdul Hafeez v. Chairman Municipal Corporation, Lahore and others (PLD 1967 Lab. 1251), where my learned brother Muhammad Akram, J. Has dealt with this point at great length.
7. At this juncture, Raja Said Akbar Khan pleaded that independent of the concept of "Service of Pakistan", even otherwise, no relief in the instant case should be granted to the petitioners who were Municipal Employees holding service in the pleasure of the Committee (or the appointing or controlling authority) and who had no right to come to Court on the mere violation of law or rules on the subject of a present kind, namely, on a matter of transfer, especially, when their relationship vis-a-vis the Municipal Committee was only that of a Master and Servant. The plea is not tenable for the following reasons
(a) In the present case, the Municipal Committee has no free-hand either in the appointment,; dismissal, removal or transfer of its employees. All these matters are regulated by a Statute and Statutory Rules. The concept of Master and Servant, therefore, is not quite- apt. Again, it is also not certain as to who is the Master of the petitioners in this case. Is their Master the Municipal Committee, in which they for the time being were working or posted ; or is their Master some other Officer or institution, namely, the Controlling Authority or the Government Still another point to be kept in view is that if the Master was the Municipal Committee in which the petitioners were for the time being posted, then the Master itself passed an order and even otherwise the scope of its jurisdiction will be confined to the territory of the Municipality for which it is the Municipal Committee and not beyond that all over West Pakistan or in various Divisions or Districts etc. All this shows that the concept of Master and Servant is not the least relevant in cases of the present kind.
Voluminous case-law is available which shows that action, either in the form of a civil suit or writ does lie against Municipal Committees or similar Local Bodies, when they exceeded the limits of law within which they are required to work. Reference may be made to S. R. Towari v. The District Board, Agra and another (AIR 1964 SC 1680), District Board Lahore v. Agha Muhammad Khan (PLD 1957 Lab. 780), Syed Ghulam Mohiuddin v. The Board of Trustees of the Karachi Port Trust and others (PLD 1957 Kar. 482), Abraham Reuben v. Tire Karachi Municipality (AIR 1929 Sind 69), Rasul Bakhsh v: The Larkana Municipality and others (PLD 1957 Kar. 489), Mahbub All Malik v. Corporation of the City of Lahore and others (PLD 1958 Lab. 370), The Managing Committee of Co-operative Model Town Society Ltd. v. Kh. Muhammad Iqbal (PLD 1963 SC 179); Imtiaz Muhammad Khan v.
Government of West Pakistan (PLD 1960 Lab. 422), Faizullah Khan v. Government of West Pakistan and others (PLD 1962 Lab. 840), Ijlas Ahmad Siddiqi v. The Municipal Committee Multan (PLD 1967 Lab. 408), where at page 418 in Par a. 7 it was written by the learned Judges that :- ---Before we part with this case, we would like to enter a caveat. We should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason void ab initio. Such a case would be an exception to the general rule laid down in the cases of Zainul Abidin v. Multan Central Co-operative Bank (PLD 1966 SC 445), Lahore Central Co-operative Bank v. Pir Seifullah Shah (PLD 1959 SC (Pak.) 210). Indeed the case of Maqbool Elahi v. Abdur Rehman Khan (PLD 1960 SC 266), notice already furnishes a remarkable example of both the general rule and the exception. In that ease, the Supreme Court issued a direction in the nature of mandamus restoring three directors (who were appellants before their Lordships) for their rightful place in the Board of a company, in place of the three co-opted new Directors whose co-option was held to be illegal. The three newly co- opted Directors, however, in the purported exercise of their authority as the Directors suspended the Secretary of the Company (who was a ministerial officer of the Company) from service. Their Lordships while reiterating the general principle earlier laid down in the case of Pir Seifullah Shah, held that the suspension from service of the Secretary, by the three newly-co-opted Directors was illegal and, therefore, set it aside. In that case, the order suspending the Secretary from service plainly suffered from inherent vice having been made by directors who assumed their office illegally and, were therefore, incompetent to make the order.--- Applying the same test to the facts and the circumstances of the present case, it would be evident that the Rule on which reliance has been placed suffers from an inherent vice of being ultra vires and, therefore, any order made in the purported exercise of that Rule, can be struck down by this Court.
(b) As regards the plea that the Municipal Employees hold office during pleasure, I have to pose a question whose pleasure? Whether of the Municipal Committee concerned or of some other officer or Authority, namely, the Controlling Authority? Apart from this vagueness of the situation, the broad fact remains that there is no indication anywhere either in the M.A.O., or the rules to the effect that office will be held at pleasure (just as there 9s such a provision in the case of the Government Servants in the Constitution). Nor is there any indication to the effect that the Committee or the Controlling Authority may in its discretion dismiss or remove from service any employee. In this situation, the case of Gould v. Stuart (1996 A C 575 (P C)), would be quite apt, where it was held with reference to the certain provisions of the New South Wales Civil Service Act of 1884, that they were manifestly intended for the protection and benefit of the officer, and were inconsistent with concept of the power of dismissal at pleasure. It was further held in that case that the concept of "pleasure" was consequently restricted. The relevant passage in that judgment at pages 577 to 579 reads as follows ---The question then to be determined is, Has the Civil Service Act, 1884 made an exception to this rule? Part I of the Act provides for the classification of officers according to their salaries, the increase of salaries, and the appointment of a Civil Service Board. Part II, provides for the examination, appointment and promotion of candidates for admission to the service: Part V for superannuation allowances, in which according to section 48 an officer is not entitled to a superannua--petition allowance until he has served fifteen years. Part v I for the creation of a civil Service Superannuation Fund, to which every officer is made to contribute by a deduction of 4 per cent. From his salary. Sections 10 and 49, which were referred to in the argument for the appellant, are not applicable to the present case. Section 10 provides for the service of an, officer being dispensed with in consequence of the abolition of his office or of any departmental change and not from any fault on his part, and section 59 to any officer not entitled to a superannuation allowance whose services may be dispensed with through no fault of his own, or who may be compelled through infirmity of body or mind to leave the service, giving power to the Governor to grant a gratuity to him. The provisions in Part III are the most material in the present case. Section 32 provides for the suspension of any officer who in the opinion of the Minister or of any officer authorized by him to investigate any matters or accounts pending a report shall have committed any act which appears to him to justify suspension but if the suspension is not made by the Minister, the officer making it is immediately to lay before the Minister a report stating his reasons for the suspension, and the Minister may either confirm it or restore the officer to his office. Then section 33 enacts that if the Minister orders or confirms the suspension he shall report the same to the Governor, who, after calling on the officer to show cause or make explanation, may remove the suspension, or according to the nature of the offence dismiss the officer from the service, or reduce him to a lower class therein or to a lower salary within his class, or deprive him of such future annual increase as he would otherwise have been entitled to receive or any part thereof during any specified time, or punish him by fine not exceeding 50-L provided that the Governor before deciding may direct the board, or appoint one or more persons to inquire into the matter, with authority to receive evidence and to summon and examine witnesses on oath. Section 34 provides for punishment by fine not exceeding 10 L. Of an officer who is negligent or careless in the discharge of (sic) his duties ; section 35 for the summary dismissal of any officer convicted of felony or any infamous offence, and the forfeiture of his office by becoming bankrupt or applying to take the benefit of an Insolvent Act, or making an assignment for the benefit of his creditors ; and section 37 for fine, suspension or dismissal in case of dishonourable conduct or intemperance. These provisions, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure. In that case they would be superfluous, useless and delusive. This is, in their Lordships' opinion, an exceptional case, in which it leas been deemed for the public good that a civil service should be established under certain regulations with some qualification of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them. Their Lordships will, therefore, humbly advise Her majesty to affirm the judgment of the Supreme Court and to dismiss the appeal."
A perusal of the passage reproduced above would show that each case has to be examined with reference to the provisions of the relevant statute and the rules. In the instant case, Articles 45 to 47 of the B. D. O., as transplanted in the M. A. O., would show that they have all been made for the public good, that a Municipal Service should be established under certain regulations with some qualifications of the members of it and that some restrictions should be imposed on the powers of the authorities concerned to dismiss them. The various provisions of the M. A. O., are manifestly intended for the protection and benefit of the employees and are, therefore, inconsistent with importing into their service term that the authority concerned may put an end to their service at its pleasure because if that were so then the said provision of law and the rules made thereunder would be superfluous ; useless and delusive.
8. The upshot of the above discussion is that the orders impugned in this case having been passed under an ultra vires rule and also by an incompetent authority or officers (a concept? Which has been elaborately dealt with my learned brother), are hereby declared to be without lawful authority and of no legal consequence against the petitioners.