Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHAMIMUL HAQ HASHMI VS Respondent: MANAGING DIRECTOR, PUNJAB LIVESTOCK, DAIRY JUDGMENT
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan Title:SHAMIMUL HAQ HASHMI vs MANAGING DIRECTOR, PUNJAB LIVESTOCK, DAIRY
JUDGMENT
Reported As: PLD 1978 Lahore 752 Result: Petition accepted Judgment JUDGMENT ' As common questions of law are involved, by this judgment. I propose to dispose of these two writ petitions, namely Writ Petition No, 2305/S-7 7 and Writ Petition No, 2367/S-77. 2. Shamimul Haq Hashmi petitioner in Writ Petition No, 2305/S,77 was initially recruited by the Lahore Milk Board as Marketing Manager in February 1973. In January 1974, the Commissioner/Chairman of the Board asked the petitioner to perform the duties of the Project Director in addition to his own duties as Marketing Manager. This was necessitated on account of the resignation of the incumbent of the post of the Project Director. The Board, later, vide its resolution No, 11 dated 15th June 1974, appointed the petitioner as Project Director with an additional emoluments of 20% of the presumptive pay of the post. Vide Notification No, 438 dated 25th September 1975," the Provincial Government approved the petitioner's promotion as Project Director in Grade No, 19 on ad hoc basis for a period of six months. This order was made effective from 28th August 1975. On the expiry of six months' period, the Government did not piss any order either way and the petitioner continued to work as Project Director. 3, The Government of the Punjab vide Notification No, 4.4-SOAR (B) L & DD/73, dated 29th November 1974, under section 40 of the West Pakistan Milk Boards Ordinance 1963, (West Pakistan Ordinance ) (XXVIII of 1963) (hereinafter referred to as the Ordinance), dissolved the Lahore Milk Board with effect from 27th November 1974. Vide Notification No, 7-28/SOP/L & DD/75 dated 6th August, 1976, Lahore Milk Plant was transferred to the Punjab Livestock, Dairy and Poultry Development Board, Lahore. This Board had been established under the Punjab Livestock, Dairy and Poultry Development Board Act III of 1974 (hereinafter called the Act) promulgated on the 1st day of
---
## Page 2
February 2974. Under this notification the persons serving in connection with affairs of the plant were transferred to and to be employed by the Board on the same terms and conditions as were applicable to them immediately before the transfer. It appears that from 24th November 1974 when the Lahore Milk Board was dissolved uptil 6th August 1976 when Lahore Milk Plant was transferred to Punjab Livestock, Dairy and Poultry Development Board, its affairs were controlled by the Commissioner, Lahore Division as an interim measure. 4. On 6th November 1976, the petitioner's appointment as Project Director was confirmed by the Chairman of the Board in Nation Pay Scale No, 19 with effect from 28th August 1975, retrospectively. Udder this order the petitioner was, also, to get benefits/ allowances etc. To which officers of the same grade in the Punjab Livestock, Dairy and Poultry Development Board, were entitled to. On 7th June 1977. The Managing Director, respondent No, 1 transferred the petitioner from the post of Project Director, Lahore Milk Board and posted him as General Manager (Operations). This followed an order dated 31st August 1977, purportedly passed by respondent No, 2, the Administrative/ Finance Committee, Punjab Livestock, Dairy and Poultry Development Board and issued by respondent No, 1, its Managing Director. Under this order the confirmation of the petitioner as Project Director, Lahore Milk Board in National Pay Scale No, 19 dated 6th November 1976, was withdrawn with immediate effect and he was reverted and posted as Marketing Manager, Lahore Milk Plant in National Pay Scale No, 18. The petitioner has questioned this order of respondent No, 1 in this constitutional petition. 5. Muhammad Aslam hived, petitioner in Writ Petition No, 2367/S-77 was appointed as Assistant Dairy Engineer in May 1972 in the service of the Lahore Milk Board. On the dissolution of Lahore Milk Board, the services of the persons working there were transferred, as noticed above, to the Punjab Livestock, Dairy and Poultry Development Board and they were to be employed on the same terms and conditions as were available to them immediately before the transfer. The petitioner's services, also stood transferred to this Board. He was then serving as Assistant Dairy Engineer in National Pay Scale No, 17. In or about October 1976, a substantive vacancy of Dairy Engineer in National Pay Scale No, 18 occurred in the Lahore Milk Plant. The petitioner vide Office Order No, 4647 dated 29th November 1976, was appointed against this vacancy and was, thus, promoted from National Pay Scale No, 17 to National Pay Scale No, 18. This appointment was on probation for a period of three months. On the expiry of probation period, however, no further orders regularising the petitioner's service or otherwise were passed and the petitioner continued to serve against this post. Respondent No, 1 on 31st August 1977 conveyed orders of the Administrative/Finance Committee (respondent No, 2) by which the promotion orders of the petitioner as Dairy Engineer in National Pay Scale No, 1I, were withdrawn with immediate effect and he was reverted to a substantive post as Assistant Dairy Engineer in National Pay Scale No, 17. This order of respondent No, 1 has been assailed in this constitutional petition. 6. The orders impugned in these petitions, I am told, have been passed under Martial Law Instruction No, 21 dated 8th August 1977 issued by Lt.-General Muhammad Iqbal Khan, Martial Law Administrator, Punjab Zone 'A'. The instructions are self-contained. They categorise ad hoc appointments and provide a procedure to regularise these appointments. The action under these instructions was to be completed by 31st August 1977. It was admitted before me that the cases of the present petitioners did not fall under any of the category of ad hoc appointments defined in these instructions. Their case, it is contended, however, would fall under paragraph No, 3 of the instructions. The authority competent to review each cases is given in pars. 2 (c) of the instructions. Pars. 2 (c) and para. 3 of these instructions are reproduced below for facility of reference :- (b) (c) Cases of all other persons appointed directly or promoted on ad hoc basis at present in service will be reviewed immediately by the appropriate selection authority competent to make
---
## Page 3
recommendations for regular appointments according to the rules. On such reviews those who are found ineligible or unsuitable, their services will be terminated. Those found eligible and suitable will be converted to regular basis. This action shall be completed by 31st August 1977, by all departments in the Province of Punjab. 3. Martial Law Administrator, Punjab, Zone 'A' farther directs that all appointments, whether by initial recruitment or by promotion, made otherwise than in accordance with the prescribed method of recruitment/promotions, shall be deemed to have been made on ad hoc basis notwithstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above." ' I am farther told that cases of a large number of officers of the Punjab Livestock Dairy and Poultry Development Board, have been reviewed by the Administrative/Finance Committee (respondent No, 2). Minutes of the Meeting of the Administrative/Finance Committee held on 29th August 1977, {{BLUR PAGE}} under these instructions have been placed before ma. "Ire4 eomprized of the, following t- (1) Dr. A. S. Akhtar, Secrety tGovernment of Pviniab, Livestoek, Fisheries and Dairy Development Department Civil Seieretariat, Lahore. (I1) Mr. Farooq Hoon, Duy Secretary, Governraent P!,:nab, Finance Department, Civil Secretaat, Lahore. (ill) Major Timer Draz Najmi, M. L. A. Representetive, Asseinb4 Chambeis, Lahore, (Iv) Dr. Haleemul Hasnain, Managing Direetor, Punjab Liveatoct, Dairy and Poultry Development Board. The Secretary, Punjab Livestock, Dairy and Poultry Development Board; via also present atthe meeting. 7. Learned counsel appearing on behalf of the petitioners in these casts raised the following points (1) Under section 6 of the Ordinance, a Project Director for each loeei area was to be appointed by the Goeerriment. Pvitioner Shaminui Haq Hashmi was promoted on d h buiti by tile Government by its order dated5-9-1975 (Annexure *C'), tinder notification dated 6-8-1976, his services were transferred to the Pb Livestock, Daily and Poultry Development Board on seine terms And conditions. His services were later confirmed by the Chairman of the Board w. e. f. 28-8-1975. He trefore, could not be reverted to a lower grade by respdent No, 2 which, even in terms of Martial Law Instruction No, 21, is not an appropriate selection authority. (2) Order of reversion having proceeded on the assumption that his promotion to Grade No, 19 was not regular, could not, in any case, be passed witho affording the petitioner an opportunity of hearing and after serving on him a proper showcause notice. Martial Lew Instructions do not expressly exclude the right of hearing and therefore the rule of audi alteram partem is to be read in these instructions. He referred to Air Rehman v. Collector and Deputy Commissioner, B. Nagar P D 1964 SC 461. (3) Even if 'the vire, of the Martial Law Instructions are not questioned, the petitioner's appointment was n reviewed by the 'appropriate selection authority' competent to make recommendations for regulat, appointment acrding to the rules. Under Regulation No, 4 of the Punjab Livestock, Dairy and Poultry Development Board (P. L. D. B.) Servi Rules, 1974, the appointing authority of the ofiicers in Grade No, 19 holding the post of Genal Managet/Secretary. The Board itself and that of the Managing Director the Government or the Punjab. S. In the case of MuhammaAslam Javed petitioner tio ru Wei: Petition. Leo. 2367/S-77,t was argued that the legal points raised in the case of Shainimul Haq Hashmi equppointed in ade No, 18 by a properly constituted Selection Committee mprising of Senior Officers of the Board herded the Maas; g Director as envisaged in the rules, his ease therefore, did no feA within the mischief of Martial Law Instructions,
---
## Page 4
{{BLUR PAGE}} 9. Learned counsel appearing for the respondents, on the other hand, argued that the petitioner Shamimul Haq Hashmi was, for the first time, appointed in National Pay Scale No, 19 with effect from 28th August 1975. This appointment was on ad hoc basis for a period of six months. This period expired on 27th February 1976. On 6th August 1976 when under Notification No, 7.28/SOP/L & DD/75, the persons serving in connection with the affairs of the Milk Plant were required to be employed by the Board, he will be deemed to be a person serving in National Pay Scale No, 18. If by any oversight, this aspect was not taken note of and the petitioner was accepted in Grade No, 19, he was not entitled to claim perpetuity in Scale No, 19. The Chairman, who by his order dated 6th September 1976 confirmed the petitioner's services in Grade No, 19, was not authorised to pass such an order as the appointing authority under the rules of such Officers is the Board or the Government itself. The petitioner's appointment therefore, in Grade No, 19 was irregular and liable to be reviewed in the light of the Martial Law Instructions. 10. As regards the competency of the authority which reviewed these asses, it was contended that in a meeting of the Board of Directors held on 22nd January 1976, the Board Delegation of Powers Rules pertaining to the appointing authority were amended. Under the amended rules, a committee authorised to take decisions upon matters concerning Administrative/Finance and other aspects of the Board was constituted. The Committee was to WNW of the, following Directors: (i) Secretary, Government of the Punjab, Finance Department. (ii) Secretary to Government of Punjab, Livestock and Dairy Development Department. - (iii) Nawabzada Malik Muhammad Asad Khan. (iv) Managing Director, Punjab Livestock, Dairy and Poultry Development Board. ' The authority which reviewed the oases in the light of the Martial Law Instructions consisted of this Committee. The order impugned, therefore, does not suffer from any illegality on the ground that the case was not reviewed by the 'appropriate Selection Committee'. ' As regards the personal hearing of the petitioners, it was contended that Martial Law Instructions do not provide for any personal hearing and therefore the rule of midi alteram partem would not be attracted. The orders impugned, therefore, cannot be assailed on this ground. 11. By way of a preliminary objection a point was raised that with off from 29th November 1974 under Notification No, 4-4-SOAH (E)/L & DD/73, Lahore Milk Board was dissolved by the Government of Punjab in the exercise of its powers conferred on it by subsection (1) of section 40 of the Ordinance. The persons serving in connection with the affairs of the Board therefore, were rendered surplus. Under Notification NO. 7-28/ SOP/I. & DD/75, dated 6th August 1976, Lahore Milk Plant was transferred to the Punjab Livestock, Dairy and Poultry Development Board, Lahore, a body constituted under a different Statute. Persons serving in connection with the affairs of the plant were to be employed afresh by the Board on the same terms and conditions as were applicable to them. It was not a case of automatic transfer. The petitioners, cannot, maintain these petitions until It is shown that they were employed in the services of the board by authorities competent to make such appointments under the rules. In any case the petitioners not having shown any such order, their initial induction in the services of the Punjab Livestock, Dairy and Poultry Development Board, was not regular, and their cases therefore, were covered by Martial Law Instructions and liable to be reviewed as such. He also criticised Muhammad Adam Javed's appointment as Dairy in National Pay Scale No, 18, by Office Order No, 4647 dated 29th November 1976. In his case, it was contended that neither procedure prescribed by the rules was followed nor was the appointment made by the competent authority which in terms of the rules was to comprise of "Senior Officers of the Board headed by the Managing Director". He referred to Federation of Pakistan v. Muhammad Afzal Khan (1) and Syed Zawar Hussain Shah v. Province of West Pakistan (2). Relying on Lahore Improvement Trust, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore (3), he lastly
---
## Page 5
argued that this Court before an order passed by a public authority is struck down should undertake to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. He also referred to The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Skid Sardar, Ticket Collector (4). 12. Learned counsel appearing for the petitioners meeting the additional grounds raised by the learned -counsel for the respondents, contended that there cannot be any dispute with the proposition that this Court will not strike down the orders of a public authority if its validity can be upheld on examination of the entire field of powers conferred on the authority. He contended that in the instant sue the respondents have claimed to act on the authority given to them by the Martial Law Instructions No, 21 and this Court may well examine if the action taken felts within the ambit of these instruction. As regard the locus stand, of the petitioners to maintain the petitions, he attempted to meet the objection in two ways. Firstly, that the petitioners were accepted by the respondents under letter dated 6th of August 1976-petitioner Shamimul Hag Hashmi in National Pay Scale No, 19 and petitioner Muhammad Aslam laved in National Pay Scale No, 17, if formal orders of their appointments were not passed by the respondents, they cannot be permitted to take benefit of their own omission. Petitioners' appointment in their respective grades had become effective and, in any case, no exception can be taken to the promotion of Muhammad Aslam laved petitioner from National Pay Scale No, 17 to National Pay Scale No, 18. He referred to Jafar 411 Akhtar Youzafzai v. Islamic Republic of Pakistan and another (5). Secondly, that, at the worst the petitioners' appointment as envisaged in paragraph No, 3 of the Martial Law Instructions, can be termed as made otherwise than in accordance with the prescribed method of recruitment/promotion and liable to be reviewed. The petitioners therefore, can make a grievance if their cases have not been reviewed in accordance with the procedure and by the authority prescribed in these instructions. 13. I have considered the arguments raised by the learned counsel for the parties at the bar and have gone through the relevant provisions of the law and other instruments applicable in the case. (1) PLD 1958 SC (Pak.) 256 (2) PLD 1968 Kar. 693 (3)PLD 1971 SC 811 (4)PLD 1966SC 725 (5) PLD 1970 Quetta 115 14. In the past few years a large number of recruitments/promotions were made more on political basis than for administrative reasons. In making these appointments prescribed methods of recruitment/promotion were by passed. Martial Law Instructions were therefore, issued by the Martial Law Administrator, Punjab, Zone 'A' for reviewing these appointments. Vires of these instructions have not been questioned before me. It will therefore be seen if the petitioners' ease fell within the mischief of these instructions and if so whether the impugned orders have been passed in accordance with the procedure prescribed by these instructions. 15. Ordinance provided the setting up of Milk Board to regulate the production and marketing of milk and milk products in certain areas of West Pakistan. It was to be a body corporate and consists of members as may be appointed by the Government. One of its members was to act as its Chairman who was to be the Chief Executive of the Board. Appointment of a Project Director, as provided under section 6 was to be made by the Government. Appointments of other Officers, under section 8, were to be made by the Board on such terms and conditions as the Board may deem fit In accordance with the scheme approved by the Government. Petitioner Shamimul Haq Hashmi was initially recruited by the Lahore Milk Board as Marketing Manager in February 1973. It has been admitted before me that this was a regular appointment. Similarly, the appointment of Muhammad Aslam Javed petitioner as Assistant Dairy Engineer was by a competent authority under the Ordinance. This, too, has not been questioned. Petitiorer Shamimul Haq Hashmi was
---
## Page 6
promoted with effect from 28th August 1975 as Project Director on ad hoc basis for a period of six months. This promotion was under the orders of the Government of Punjab which was the competent authority, as noticed above, under section of the Ordinance. The ad hoc appointment came to an end on the expiry of the period of six months on 27th February 1976. His continuance as Protect Director in National Pay Scale No, 19 was therefore, not regular. However Muhammad Aslant Javed petitioner held the post of Assistant Dairy Engineer in National Pay Scale No, 17 on regular basis. 16. Section 40 of the Ordinance empowers the Government by a notification to dissolve the Board. As a consequence of the dissolution as provided in subsection (2), all properties, funds and dues which immediately before the said date were vested in or were realizable by the Board shall vest in and be realizable by Government. All liabilities which immediately before the said date were enforceable by the Board shall be assumed by, and be enforceable against Government and for the purpose of completing the execution of any scheme or project sanctioned under this Ordinance which has not been fully executed by the Board and for realising properties, funds and dues referred to in clause (a) the functions of the Beard shall be discharged by Government. ' Lahore Milk Board was dissolved with effect from 27th November 1974 by a notification dated 29th November 1974. As a consequence of this notification the functions of the Board were to be carried out by the Government. Board had set up at Kot Lakhpat a plant known as 'Lahore Milk Plant Kot Lakhpat'. The petitioners later alia though in the service of the Lahore Milk Board were performing functions in connection with the affairs of the plant. Vide Notification No, 7 28/SOP/L & DD/75, Lahore Milk Plant Kot Lakhpat was transferred to the Punjab Livestock Dairy and Poultry Development Board, Lahore. This transfer was subject to the following two conditions :- (1) All rights, properties, assets, liabilities, debts and obligations of the Government in connection with the affairs of the plant shall be the rights, properties, meets, liabilities, debts and obligations of the Board ; and (2) the persons serving in connection with the affairs of the plant shill be transferred to, and employed by the Board on the same terms and conditions as were applicable to them immediately before the transfer. 17. Punjab Livestock, Dairy and Poultry Development Board had been set up under a different statute i,e, Punjab Act No, III of 1974. The constitution of the Board is provided in section 5. It consists. Of a Chairman and the following Directors :- (i) Chairman, Planning and Development Board, Punjab (ii) Chief Land Commissioner, Punjab ; (iii) Secretary to Government of the Punjab, Finance Department ; (iv) Secretary to Government of the Punjab, Agriculture Department ; (v)Secretary to Government of the Punjab, Livestock and Dairy Development Department ; (vi) Non-official members not less than four in number ; and (vii) Managing Director. ' Under subsection (2), the Chairman, the non-official Directors and the Managing Director were to be appointed by the Government. The Government is empowered under subsection (3) to alter the membership of the Board or increase or decrease the number of Directors. The appointment of other officers and advisers, can be made under section 8. Under section 25, the Board may, with the previous approval of Government, make regulations for all matters not provided for in the rules for which provision is necessary or expedient for carrying out the purposes of the Act. In the exercise of these powers the Board has made regulations governing appointments and prescribing terms and conditions of service. ' It will therefore, been that any person claiming to be in a regular service of the Board, shall have to be appointed in accordance with the provisions of the Act and the regulations made tinder section
---
## Page 7
25. 18. Appointing authorities to various poste have been categorised in Regulation No, 4, Part II of the Regulations Appointing Authority of Managers/Project Manager/Engineer Project and equivalent posts, such as, held by the petitioner Muhammad Aslam Javed, ii a Selection Committee comprising of Senior Officers of the Board headed by the Managing Director. Similarly, the appointing authority of the General Manager/Secretary i,e, Officers in National Pay Scale No, 19, is the Board itself. 19. Contention of the petitioners therefore, that by virtue of the notification dated the 6th of August 1976, their services automatically stood transferred to the Punjab Livestock, Dairy and Poultry Development Board, Lahore, cannot be accepted. Even under the conditions on which the Lahore Milk Plant was transferred to the Board, persons serving in connection with the affairs of the plant were to be transferred to and employed by the Board. In the absence of any order by the Board, the petitioners therefore, cannot successfully contend that they are to be deemed in a regular service of the Board. 20. Petitioner Shamimul Haq Hashmi relied on a letter dated 6th November 1976 to argue that his services in National Pay Seale No, 19 bad been regularised by the Chairman of the Board with effect from 28th August 1975, retrospectively. This letter, I am sorry, is of no avail to the petitioner. The appointing authority of a person in National Pay Scala No, 19 is the 'Board' itself and not the Chairman. It will therefore, be concluded that the petitioner's services with the Board in National Pay Scale No, 19 were not on regular basis and his case needed review in terms of the Martial Law Instructions. 21. Petitioner Muhammad Aslam Javed's case is that he applied, in or about October 1976, for appointment against the post of a Dairy Engineer that had fallen vacant under the Board. Order of his promotion was conveyed to him vide Office Order No, 4647 dated 29th…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.