Ch. Abdur Rashid, the petitioner last held the post of Director (Purchase and Stores) in the Capital Development Authority. He received a notice dated 16-10-1976 "as to why a major penalty as prescribed in Government Servants (Efficiency and Discipline) Rules, 1973, as adopted by Capital Development Authority (hereinafter referred to as the Rules) be not imposed." The grounds for such a notice were that he was "(i) in the habit of obtaining large bribes from suppliers for accepting inferior materials; (ii) enjoyed persistent reputation for corruption; (iii) considered to be corrupt" under the Rules. The petitioner showed cause in writing and the following operative order followed on 30-10-1976 : "The matter has been considered by the Board, and his explanation furnished in reply to the show- cause notice has not been found to be satisfactory. He has thus been found guilty of the charges mentioned in the confidential letter No. CDA/Secy-PA-10-76-5528 dated 16-10-1979 and is, therefore, removed. From service with immediate effect under the provisions of Government Servants (E & D) Rules, 1973 as adopted by C. D. A."
2. The petitioner has invoked the Constitutional jurisdiction of this Court for challenging this order on the following grounds :
(i) The authority initiating the action against the petitioner was not the competent authority;
(ii) The procedure adopted for dealing with him was not the prescribed procedure; .
(iii) The allegations were vague and the action has been taken without there being any material against the petitioner.
3. There are two preliminary objections taken to the competence of this petition. The first and the more substantial one is that the petitioner was not the holder of any representative, public. Elective or statutory office nor does his case involve an allegation of violation of statutory rules of service. In the absence of these features, as held in R. T. H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), or Abdur Razaque v. WAPDA (PLD 1973 Lah. 188), it was a simple relationship of master and servant and Constitutional jurisdiction was not available to the employee in the matter of his employment. The second objection is that the "petitioner has not exhausted the remedy of statutory appeal available to him".
4. In order to determine the first preliminary objection, it is necessary to examine the law applicable to the petitioner and his office. The, Capital Development Ordinance, 1960 (hereinafter referred to as the Ordinance) by its section 4 constitutes the authority. In Chapter III thereof are to be found its powers and duties. Chapter V deals with establishment. Section 37 authorises the Authority to appoint such officers, servants or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit provided the remuneration of salaried officers and servants does not exceed two thousand and five hundred rupees per mensem. Then follows section 38 which is reproduced in extenso hereunder : "The Authority shall lay down the procedure for the appointment of its officers, servants, experts and consultants and the terms and conditions of their services including the constitution and Management of provident fund for them, and shall be competent to take disciplinary, action against them."
5. In Chapter VIII of the Ordinance there are two provisions which deserve attention. Section 50 provides as follows : "The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Ordinance: ---Provided no rules shall be made on any of the matters specified in section 38."
6. Section 21 of the Ordinance as originally framed was as here under : "Subject to rules, the Authority may make regulations on all matters for which regulations are necessary or expedient."
This section was substituted by Amending Act (XXII of 1966) and stands as follows : "The Authority may make regulations not inconsistent with the rules, if any, on all matters for which regulations- are necessary or expedient, and such regulations .Shall be published is the official Gazette."
7. In January 1973 in exercise of the powers conferred by section 51 of the Ordinance the Authority notified the Service Regulations, 1973, Regulation 12 makes the following provisions "The employees shall be subject to the Government Servants (Efficiency and Discipline) Rules, 1960 and other rules made in this behalf and in force for the time being."
Rule 3 of the Rules provides, amongst others, the following grounds for taking action "when a Government servant in the opinion of the Authority ......
(a)
(b)
(c)is corrupt or may reasonably be considered corrupt because (i)
(ii)
(iii) he has a persistent reputation of being corrupt or
(d) .........
Rules 5 provides for the procedure and sub-rule (m) provides that if the authorised officer decides that it is not necessary to have an inquiry conducted through an inquiry committee he shall communicate in writing the grounds, allow reasonable opportunity of showing cause and after receipt of explanation forward it with his own recommendation to the authority for passing such order "as it may deem proper".
8. The statutory offices under the Ordinance have been specified in section 6 of the Ordinance and these are of the Chairman and Members. It is not the case of the petitioner that he was holding a statutory post. His case on this point is that statutory rules of service governed his employment and these have been infringed to his prejudice. Therefore, the question to be determined is whether the Service Regulation, 1973 are statutory rules or not.
9. In a recent decision of the Supreme Court in Muhammad Asghar v. Safia Begum (PLD 1976 SC 435), it was found that in the absence of law like Statutory Instruments Act of U. K., there has been added "confusion in distinguishing statutory instruments from purely executive action". It was, however, held that generally speaking, a statutory instrument means a document which is legislative (as opposed to executive) made by a rule-making authority in exercise of a statutory power. Precisely it is the exercise of the declegated legislative power by the rule-making authority which distinguished a statutory rule from purely executive and administrative instruments".
10. In Halsbury's Laws of England, Vol. 36 (Third Edition) the meaning of statutory Instrument has been described in the following words : "For the purpose of determining whether a particular document is a statutory instrument a distinction is drawn between on the one hand, documents made in the exercise of powers conferred either by the Statutory Instrument Act, 1946 or by statutes passed since its commencement and on the other hand, documents made in the exercise of powers conferred by earlier statutes.
In the case of documents of the first class, the position is straightforward. Such a document is to be known as a statutory instrument if the power is a power to make, confirm or approve orders, rules, regulations or other subordinate legislation, is conferred either on Her Majesty in Council or on a Minister of the Crown, and is expressed to be exercisable by Order in Council in the former case and by statutory instrument in the latter.
So. Far as documents of the second class are concerned, the position is more complicated, but the underlying principle is that, save as otherwise provided by regulations, a document is to be known as a statutory instrument if the power which the document exercises was a power to make statutory rules within the meaning of the legislation formerly in force, conferred on a rule-making authority within the meaning of that legislation. Regulations may - determine the classes of cases in which the exercise of a statutory power by any such authority constitutes, or does not constitute, the making of a statutory rule. Finally, where the exercise of any power to confirm or approve subordinate legislation conferred on a Minister of the Crown by a statute passed before 1948 did not constitute the making of a statutory rule, - an Order-in-Council may direct that any document made in exercise of the power after a date specified in the order shall nevertheless be known as a statutory instrument and the provisions of the Statutory Instruments Act, 1946 will apply thereto accordingly."
Salmond in his "Jurisprudence" while dealing with subordinate legislation made the distinction clearer by stating as follows : "All kinds of legislation which we have hitherto considered proceed from the State itself, either in its Supreme or in one of other of its many subordinate Departments. The great bulk of enacted law is, promulgated by the State in its own person. But in exceptional case it has been found possible and expedient to entrust this power to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make bylaws for the regulation of its undertaking. A University may make statutes binding upon its members. A registered company may after those articles of association by which its constitution and Management are determined. Legislation thus affected by private persons, and the law so created may be distinguished as autonomic."
11. Coming back now to the provisions of the Ordinance which have already been reproduced in this judgment we find that by enacting section 50 the Legislature in express terms made provision for the framing of statutory rules by empowering an authority (Government, outside the Capital Development Authority, to frame rules and by indicating the manner of doing so that is by notification in the Gazette. What is, however, peculiar to this section is the manifest intention of the legislation that no rule shall be made by Government on service matters for which the Capital Development Authority was alone competent to frame regulations. The only meaning that can be given to this express provision is that the Authority was the sole arbiter of the terms and conditions of employees for which if it chose, it could frame regulations.
12. The Amending Act, 1966 provided for publication of the Regulations in the Gazette. If the regulations are otherwise non-statutory in character, this requirement of publication cannot by itself make them statutory. The reasons for so holding are numerous. Firstly, when an authority for Capital Development is established and its powers and functions are specified in which they do appear here the power to employ officers and servants on conditions determined by it follows as a necessary adjunct, as implied in the powers and duties conferred on the Authority. Such employment will necessarily be governed by master and servant principle unless there be some statutory provision to the contrary or in derogation of it. The object of reiterating this fact in section 37 of the Ordinance was to highlight the statutory control or limit on this power. Previous approval of the Government in writing was made necessary where appointment of salaried officer or servant whose remuneration exceeded Rs. 2,500 p.m. Was to be made. This control or limit is certainly statutory, but the remaining recital is a mere reiteration of something which was implicit in the situation.
13. Secondly, notwithstanding the peremptory language used in section 38, the appointments etc., could be made without framing the regulations. Because applying the well-known rules of interpretation the requirement here must be held to be directory rather than mandatory. This also demonstrated in practice by the department, for the Authority was established by this Ordinance in 1960 and started functioning then but the Service Regulations were framed in 1973. It Would be anomalous to assert that if no regulations under section 38 are framed, the governing principle would be of master and servant and the moment the service regulations are framed the principle is transformed into a statute relationship. This cannot be the result particularly because service matter have been kept outside the purview of section 50, or the rule-making authority.
14. Thirdly, the requirement of publication of the Regulations in the official gazette is a matter of procedure not touching the nature, content or effect of the Regulations framed under section 38 and required under section 51 to be notified in the Gazette. Reference can profitably be made to the same volume of Halsbury dealing with "Printing and Publication" requirement where the following observations have been made : "So far as documents other than statutory instruments are concerned, publication is a matter for which provision will be found if at all, in the enabling statute concerned or in the Code of which that statute forms part - failure to comply with the requirements as to printing and sale does not invalidate the instrument; where any enactment, whenever passed, requires any statutory instrument to be published or notified in the London, Edinburgh or Belfast Gazette, the publication in the gazette of a notice stating that. The instrument has been made, and specifying the place where copies of it may he purchased, is sufficient compliance with the requirements."
15. Finally, the Rules standing by themselves, and independently are undeniably statutory rules. But instead of lending their own colour character and efficacy to the Regulation incorporating them by reference, they are g relegated to the position of the law incorporating them. Their independent character is lost. This legal consequence of incorporation is not questioned by the learned counsel for the petitioner and has been recognised long back in Lahore Central Co-operative Bank Ltd. v. Pir Salfullah Shah (PLD 1959 SC 210).
16. There are two other grounds, some what residuary in nature, on which these proceedings are sought to be maintained. The first concerns the distinction between mandamus and certiorari and the second relates to the order impugned being void ab initio or suffering from, as it is said, an inherent vice. With regard to the first contention, reference has been made, and reliance placed on the decision in Abdur Razzaque's case. While discussing the import of Pir Saifullah Shah's decision (PLD 1966 SC 848). The learned Judge observed. "The quotation from Pir Saifullah Shah's case, leaves no manner of doubt that their Lordships concerned themselves with the scope of mandamus. What I am required to do in the present case is to just grant a declaration that the impugned order is without lawful authority and of no legal effect, and not issue a mandamus. I am, therefore, not to be guided by considerations applicable to the latter." The discussion on this point concludes with the following observations : "I, however, found myself on firm ground in assuming jurisdiction in the present case on a stronger basis, i. e. The case before me is more akin to a petition for certiorari rather than a mandamus. By reason of the doctrine of ultra vires applicable to all statutory persons, the Courts may declare illegal any executive act of a Corporation which is not expressly or by necessary implication within its statutory powers.
In a proper case the Court will issue an injunction to prevent one or the other party from breaking the contract of employment. The conclusion drawn by David Springfield in this book, 'The Company Executive and the Law', page 145."
17. It was in the background of this submission that I have from the beginning considered the case of the petitioner from two aspects. The first was to find out whether he held a statutory, public, or elective office of which he had been deprived in violation of law. He could on proving to claim a direction in the nature of mandamus. The other alternative for him was to establish that he had a legal right embedded in a provision of the statute, statutory rules, or instrument having the efficacy of a statutory rule. If it was not so and his legal right arose out of a contract simpliciter, whether of employment or not, then Constitutional jurisdiction cannot be availed of by him.
18. For the other ground, reliance has been placed on the decision in Ijlaz Ahmed Siddiqui v. The Municipal Committee Multan (PLD 1967 Lah. 408), particularly the following observations made therein : "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."
The example that follows and independently of it, the concept of inherent vice is relatable to lack of jurisdiction and not either to procedural error or content and substance of the proceedings as such.
19. The upshot of the above discussion the petitioner being not the holder of a statutory, public or elective office, and his case not involving the infraction of a statutory provision or rule, cannot in terms of decision of the Supreme Court in Janjua's case or of this Court in Abdur Razzaque`s case maintain this Constitutional petition. Such a petition is incompetent. The preliminary objection prevails and the petition is dismissed. In the circumstances of the case, the parties are left to bear their own costs.