MALIK M.UHAMMAD QAYYUM, J.--This is an appeal under section 3 of the Law Reforms Ordinance, 1972 from the judgment and order dated 22-6-1999 passed by a learned Single Judge of this Court whereby the Constitutional petition filed by the respondent was accepted.
2. Briefly stated the facts giving rise to this appeal are that the respondent who was working as Deputy Chief Controller of purchase in Pakistan Railways was proceeded against departmentally and was served with a show-cause notice to which he submitted his reply. However, during the pendency of those proceedings, he filed the Constitutional petition out of which this appeal has arisen challenging the appointment of Mr. Masood Ahmad Daher as Chairman of the Pakistan Railways and also as Authorised Officer. In the said petition, the appellant had also prayed that show-cause notice and all the proceedings taken pursuant thereto be declared as without lawful authority.
3. When this petition came up for hearing before the learned Single Judge, an objection was raised as to the maintainability of the Constitutional petition by the appellant on the ground that the dispute related to service matter and as such the petition was barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The learned Single Judge by means of his judgment repelled the preliminary objection on the statement made by the learned counsel for the respondent that the petition be treated only as a writ in the nature of quo warranto which could only be granted by the High Court and not by the Service Tribunal. On merits, the learned Judge came to the conclusion that since Mr. Masood Ahmed Daher was not appointed as one of the Members of the Board, he could not become its Chairman, in view of Article 3 of the Transfer of Railways Order, 1962 as amended by Ordinance I of 1998.
5. We have heard the learned Deputy Attorney-General in support of this appeal and Hafiz Tariq Nasim, Advocate, in opposition thereof.
6. Surprisingly, the learned counsel for the respondent/writ petitioner has raised preliminary objection as to the maintainability of this appeal by arguing that as the original order passed in the proceedings was appealable before the Service Tribunal, this appeal is hit by proviso to subsection
(2) of section 3 of the Law Reforms Ordinance, 1972.
7. This objection, however, overlooks the fact that it was the learned counsel for the respondent/writ petitioner himself who had made the statement before the learned Single Judge giving IR all the reliefs except that of quo warranto and had argued that in such matters, Service Tribunal does not have jurisdiction. We have therefore, no hesitation in repelling this objection.
8. As regards merits Article 3 of the Transfer of Railways Order, 1962 (P.O. No,33 of 1962) as amended by Transfer of Railways (Amendment). Ordinance, 1998. Reads as under:- "3. Constitution of Railway Board.--(1) For the management of the Railways in Pakistan there shall be a Railway Board consisting of a Chairman and five members to be appointed by the Federal Government.
(2) Secretary to the Government of Pakistan, Railways Division, shall be ex officio Chairman of the Board, and out of members mentioned in clause (1)-
(a) three members shall be appointed from private sector and serve on the Board on part time; and
(b) the remaining two members shall be full-time members of the Board; of whom one shall be the General Manager Railways who will also be the Chief Executive Officer and the other to be called the Finance Member shall be responsible for financial administration of Pakistan Railways.
(3)..................................................................
(4)..................................................................
(5)..................................................................
9. On a bare perusal of the afore cited provision it will be seen that the Board comprises a Chairman and 5 other members. In view of the amendment made in sub-Article (2) of the Transfer of Railways Order, 1962, the Secretary to the Government of Pakistan, Railways Division is to be the ex officio Chairman of the Board. Reading sub-Article (1) and sub-Article (2) of Article 3 together, the only possible interpretation is that while Secretary to the Government of Pakistan, Railways Division, becomes ex officio Chairman of the Board, five members have to be appointed by the Federal Government. The Chairman does not have to be first appointed as a Member of the Board.
If the interpretation placed by the learned Single Judge is accepted, the Board would comprise four Members and the Chairman and not five members which is not the intent of law. With great respect to the learned Single Judge, we are, therefore, unable to subscribe to the view taken by him that the appointment of Mr. Masood Ahmad Daher, was invalid as he was not a Member of the Board. In view of what has been stated above, we allow this Intra-Court appeal, set aside the judgment and order of the learned Single Judge and dismiss the Constitutional petition filed by the respondent with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.