The instant W.P. No,20175 of 2001, W.P. No,8300 of 2002 as also W.P. No,19778 of 2002, are being disposed of together, as common questions of law and facts are involved in all these matters.
2. Briefly stated the facts of the case are that, prior to 1-1-1981, the administrative and functional control of the Office of Accountant-General, Posts, Telegraphs and Telephone Department in respect of Audit as well as for maintenance of Accounts, vested with the Auditor-General of Pakistan, but under the policy of the Government vide Notification dated 24-12-1980, these posts were departmentalized and with effect from 1-1-1981, the administrative control of the part of office of the Accountant-General, Posts, Telegraphs and Telephone Department relating to the accounting work of Pakistan Post Office Department, vested with the Director of Accounts, Pakistan Post Office Department. This position remained in vogue till 30-6-2001, when the Ordinance No,XXIV of 2001, was enforced, through which, the Office of the Controller-General of Accounts was established and under section 6 of the Ordinance, it was provided as follows: "6. Certain offices to work under the control of the Controller General.---(1) The Controller-General shall have such offices at the Federal, Provincial and District levels and such officers working in these offices as may be notified for this purpose by the Federal Government and the respective Provincial Government.
(2) Until such time the officers of the Controller-General specified in subsection (1) are notified the following accounting organizations shall work under the Controller-General, namely:---
(a) The Accountant-General of Pakistan Revenues and its sub-offices.
(b) The Military Accountant-General and its sub-offices,
(c) The offices of the Provincial Accountants-General of each Province and the offices subordinate to them.
(d) The Chief Accounts Officers of the departmentalized accounting offices; and
(e) Any other departmentalized accounting organizations as well as the sub-offices.
(3) The Controller-General shall be the administrative head of all the offices subordinate to him with full authority for transfer and posting within his organization."
3. Consequent upon the aforesaid Ordinance, the administrative and functional control of almost all the accounting organizations of various departments including departmentalized accounts offices, the office of respondent No,1 was transferred under the authority of administrative and functional control of respondent No,3, the Controller-General of Account, as an independent entity.
The respondent No,3 issued the notifications dated 19-7-2001 and 23-7-2001 to the above effect and accordingly, all the accounting organizations of various departments including the Chief Accounts Offices of respondents Nos. 1 and 2, came under the administrative control of respondent Nob.
4. It is stated in the petition that, respondent No,1, in order to circumvent the provisions of above Ordinance, and also to usurp the authority of respondent No,3, formulated a device of decentralization. But the employees of the office of respondent No,1 represented to the respondent No,3 for interference. The said respondent vide letter dated 22-8-2001 directed the respondent No,1 to consult the Controller-General of Accounts alone, being the administrative head and to avoid any action of decentralization. However, the respondent No,2 acting unlawfully, insisted to his device and in these circumstances, the petitioners were constrained to file W.P. No,15777 of 2001, in which through an agreement between the parties to the petition, it was directed that respondent No,3 should take a decision on the issue. Anyhow, despite the above order, the respondent No,2 without waiting for the decision of the respondent No,3 through the impugned order dated 3-10- 2001, addressed to respondent No,1, directed to effect the decentralization of the functions of the Office of the Director Accounts by creating various regional offices and transferring the various employees of the Accounts Department to Peshawar, Quetta, Karachi, Islamabad. Aggrieved of the above, the petitioners filed the present petitions.
5. It has been argued by the learned counsel for the petitioners that, under subsections (2) and (3) of section 6, the administrative control of the departments mentioned therein, which undoubtedly, includes the Post Office Accounting Department, shall vest in the respondent No,3 and that respondents Nos. 1 and 2 have no authority to decentralize or create regional offices or to post the employees of Accounts Department to those areas, thus,the action of the respondent No,2 in issuing the impugned order, is without authority and jurisdiction and ultra vires to the Ordinance.
6. Mr. Rafique Shad, Advocate, learned counsel for respondents Nos.1 and 2, has stated that the Notification under section 3 of the Ordinance, has not yet been issued, therefore, the functions under the Ordinance, conferred upon the Controller-General, have not taken effect. This argument has been immediately and rightly controverted by the petitioners' side and they have produced on record a Notification dated 16-7-2001, which has been issued in pursuance of the section, whereby the Auditor-General has transferred the accounting function to the Controller-General of Accounts.
7. The learned counsel for respondents Nos.1 and 2, by further referring to section 6 of the Ordinance, states that the Post Office Accounting Department is not specifically mentioned therein, resultantly the Post Office Accounting Department does not fall within the purview of above section.
8. I am afraid, this contention too has no force, because under subsection (6)(e), it is categorically specified that-- "any other departmentalized accounting organizations as well as the sub-offices."
Admittedly, the Post Office Accounting Department is departmentalized accounting organization and, therefore, by virtue of this sub-clause, the Controller-General has the full authority to exercise its administrative control inclusive of transfers and postings of the officers working in this field, under subsection (3) of section 6.
9. The last submission of the learned counsel for the respondents Nos.1 and 2, that as per Rule No,8 of Rules of Business, if there is a dispute between two Government departments, same shall be resolved by the Prime Minister, suffice it to say that, in this case, earlier the order was passed, referring the matter to the learned Attorney-General of Pakistan, who is the Principal Law Officer of the Federal Government, for interference and to resolve the matter in the medium provided under the law. But after some efforts, he has shown his inability, conveyed through Mian Hameed-ud-Din Kasuri, learned Deputy Attorney-General. Even otherwise, the Rules of Business, though are framed under the Constitution and binding upon two departments, but if any individual having the grievance that the law of the land is not being followed and seeks enforcement thereof, and the Government does not perform its function provided under the rules, the exercise of writ jurisdiction cannot be refused, only on the ground that there is some mechanics provided for the resolution of the issue in the rules, particularly, when the rules are not being followed by the concerned authority.
10. It is a clear case, where the powers, functions and authority of the Controller-General of Accounts, are specified in the Ordinance, mentioned above and according to the interpretation of law, I am left with no doubt in my mind to hold that, on enforcement of the Ordinance, the Controller-General was vested with the exclusive administrative control and authority of all the departmentalized accounting organizations, including the Post Office accounting departments and thus, the power to create any regional offices; to effect the decentralization of the accounting office of a department, and for the postings and transfers of the employees thereof, could only be exercised by the Controller-General and respondents Nos. 1 and 2 had no authority in that behalf.
Resultantly, the impugned order being in violation and ultra vires of the Ordinance, is hereby declared to have been passed without lawful authority and jurisdiction, thus, the same is set aside, with the consequences to follow.
In the light of what has been stated above, these petitions are accordingly allowed.