Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed FAYYAZ HUSSAIN QADRI, ADVOCATE VS Respondent: THE ADMINISTRATOR. LAHORE JUDGMENT
Court Name: Lahore High Court Judge(s): Sardar Muhammad Iqbal, Zakiuddin Pal Title:Syed FAYYAZ HUSSAIN QADRI, ADVOCATE vs THE ADMINISTRATOR. LAHORE
JUDGMENT
Reported As: PLD 1972 Lahore 316 Result: Petition accepted Judgment JUDGMENT SARDAR MUHAMMAD IQBAL, J.- The petitioner was appointed as an Additional Legal Adviser of the Municipal Corporation of the City of Lahore by the order of the Chairman contained in his letter dated the 17th of November 1965. He was subsequently appointed as Legal Adviser of the Corporation with effect from the 5th of July 1969 (vide Annex `D'). The Administrator of the Corporation of the City of Lahore by his letter dated the 10th of May 1970 informed him in the following terms:- "As directed by Government under their Memorandum No. SOIV-LMC-3 (26)/69, dated the 9th November 1970, your services will stand terminated on the expiry of period of notice of 90 days from the date of issue of this notice in accordance with the provisions of section 3 of the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964." The petitioner has challenged the order through this petition tinder Article 98 of the Constitution of the Islamic Republic of Pak., 1962, read with the Provisional Constitution Order, 1969. 2. The Writ Petition was filed only against the Adminis--trator and the Provincial Government. Mr. Muhammad Saeed,. Mr. Muhammad Akbar and Mr. Maqbool Ahmad, the newly appointed Legal Advisers were, at their request, impleaded as respondents. 3. It was contended by the learned counsel for the petitioner that the impugned order had been passed without complying with the provisions contained in Article 177 of the Constitution of the Islamic Republic of Pakistan, 1962, as the petitioner was not afforded an opportunity to show cause against the proposed action. We find the contention untenable. Article 177 applies to a person who
---
## Page 2
is a member of an All Pakistan Service or of a Civil Service of the Centre or of a Province or who holds S civil post in connection with the affairs of the Centre or a Province. The petitioner does not fall under any of these categories. The Municipal Corporation doubtless acts in connection with the affairs of a Province, but its employees are not the holders of civil posts in connection with the affairs of the Province, because their activities do not fall within the sphere of the Province and their services are also not under its direction and control. A Municipal Committee is constituted under section 8 of the Municipal Administration Ordinance of 1960, and is a body 4 corporate and exercising control on the activities of its employees who perform functions subject to its direction and control. The fact that the Government may have some control on the Municipal Committee in respect of some broad lines of policy will make no difference, because it does not function as a Govern--ment Department, and as an employer it had an entity of its own distinct from that of the Government, and its employee are rot, therefore the employees of the Government benefit by the guarantees and safeguards provided in Article 177 of the Con--stitution. In Shujauddin Ahmad v. Oil & Gas Development Corporation (1971 SCMR 566) it was held: "The consistent view of this Court hitherto fore has been that the employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case. In Muhammad Ali v. Commissioner, Lahore Division (1962 P SCR 173) while dealing with section 240 of the Government of India Act, 1935 and Article 180 of the Constitution of 1956, which were similar to Article 177 of the 1962 Constitution, it was observed by Fazal-e---Akbar, J: "It cannot, in our opinion, be urged that a Secretary of the Municipal Committee holds a civil post under the State within the meaning of section 240 of the Government of India Act, 1935 and Art. 180 of the late Constitution. He also cannot claim safeguards provided for public servants under the Govern-- ment of India Act, 1935 or the late Constitution". The same view was taken in Abdul Hafeez v. Chairman, Municipal Corporation, Lahore (PLD 1, 67 Lab 1251), A. George v. Pakistan International Airlines Corporation (PLD 1971 Lab. 748), Ahmad Hussain Qureshi v. Chairman, WAPDA (PLD 1967 Lab. 796) and Abdus Salam v. Chairman, WAPDA (1970 SCMR 40). 4. On behalf of the respondents, an objection to the com--petency of the Writ Petition itself was raised on the ground that the relationship of the petitioner and the Corporation was that of a master and a servant, and the remedy of the petitioner for a wrongful removal from service was by way of damages. There distinction in cases of the employees of a statutory body acting in connection with the affairs of the Central or a Provincial Government (like Universities, Boards of Education, Water and Power Development Authority etc.), whose terms and conditions are regulated by a statute or the statutory rules, and those employees who work under contracts, and have thus the contractual terms and conditions to govern them. An employee of the latter category cannot enforce his rights arising from the contract through a Writ Petition. His remedy is by way of a suit under the ordinary law of master and servant as held in Secretary, East Pakistan Industrial Development Corporation v. Muhammad Sirajul Haq (1970 SCMR 398). However, it' an employee of such a corporate body can show that an order dismissing or removing him from service or any other order adversely affecting his rights, has been passed in violation of a statute or the rules having the force of law, he can, doubtless, invoke the jurisdiction of the High Court under Article 98-See Muhammad Din v. The Corporation of the City, of Lahore (PLD 1960 Lab. 242), Dr. Abdul Hafiz v. Chairman, Municipal Corporation, Lahore (PLD 1967 Lah. 1251) and M. S. Furukhi v. The Province of West Pakistan (PLD 1970 Lah. 195). 5. On behalf of the petitioner it was contended that he had been appointed by the Municipal Corporation in the exercise of its powers under section 29 of the Municipal Administration Ordinance of 1960, read with Article 45 of the Basic Democracies Order, 1959; that the appointment was made with the previous approval of the Government as was required under section 3 of the West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965; that
---
## Page 3
under section 4 of the 1965-Ordinance the Government had the power to remove or dispense with the services of any Legal Adviser; that with the repeal of the said Ordinance with effect from the 22nd of November 1969 by the West Pakistan Statutory Bodies (Appoint--ment and Removal of Legal Advisers) (Repeal) Ordinance, 1969, the power of the Government to remove a Legal Adviser under the repealed Ordinance came to an end; that the power of removal remained vested where it was under the law; and that the petitioner could be removed only in accordance with the pro-- visions contained in clause (4) of Article 45 of the Basic Demo--cracies Order, 1959, by the Administrator, but since he did not .Do so and acted on the behest of the Government the impugned order of termination of the petitioner's services is illegal. It is also contended that the petitioner's services could not be terminated by a notice under rule 3 of the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964. 6. The position taken up by the Provincial Government in the written statement was that the Provincial Government had not removed the petitioner and that it was the Administrator himself who had ordered his removal. The learned Advocate---General also contended that the Legal Advisers were appointed under Ordinance XXXII of 1965 and that with the repeal of the Ordinance the petitioner ipso facto ceased to be the Legal Adviser; that at any rate after the repeal his appointment remained subject to removal by the Government as provided by section 4 of the Ordinance; that the appointment of the petitioner was not under Article 45 of the 1959-Order read with section 29 of the 1960 Ordinance; and that, in the alternative, if the appointment was under the said provisions, it was subject to the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964, and the Government being the prescribed authority was competent to remove the petitioner. It was also contended that the Govern--ment could, in the exercise of its powers under section III of the Municipal Administration Ordinance, give the direction, like the one under consideration, to the Administrator to remove the Legal Advisers. On behalf of the other respondents, it was argued that the Municipal Corporation had been superseded by the Government in the exercise of its powers under section 112 of the Ordinance and the Government, therefore, alone was competent to pass the order of removal, and not the Administrator who was only one of its officers employed for carrying out the business of the Corporation under its directions. It was submitted on their behalf that the direction given to the Administrator was, in fact, an order of removal by the Government. 7. In view of the conflicting positions taken up by the parties, it became necessary to know as to who passed the order of removal of the petitioner. Government's case in the written statement is that it did not pass the order, bat instead it was made by the Administrator. The petitioner had unequivocally alleged that the Administrator did not want to remove any of the Legal Advisers and, therefore, passed no order of their removal. The Advocate-General, in the circumstances, was asked by us to contact the Administrator to find out from him if he had passed the order in question. He, after taking instructions from him, stated that the Administrator had not passed the order of removal of the petitioner, and that he only communicated to him the decision of the Government. Thus, there is neither the order of the Government nor that of the Administrator removing the petitioner from service, with the result that he continues in law to hold the office of the Legal Adviser. 8. The action against the petitioner is purported to have been taken under rule 3 of the West Pakistan Municipal Commit--tees (Legal Advisers) Rules, 1964, rule 3 of which reads as follows:- "3. Appointment of Legal Adviser and legal practitioner.-Not--withstanding anything to the contrary contained in any rules, by-laws or terms and conditions governing the employment of Legal Advisers of Municipal Committees, any appointment or employment of a Legal Adviser made by or on behalf of a Municipal Committee, and subsisting immediately before the coming into force of these rules, unless approved by Govern--ment within three months of the enforcement of these
---
## Page 4
rules shall, subject to the other provisions of this rule, be deemed to have been terminated, on the expiry of the said period of three months. Provided that where such rules, by-laws or terms and conditions of employment provide for the giving of notice for the termination of employment, such notice shall be given on the expiry of the said period of three months, and the appointment shall be deemed to continue during the said period of notice Provided further that where such rules, by- laws or terms and conditions of employment do not provide for the giving of any notice for the termination of employment, a notice shall be served, on the expiry of the said period of three months, on the person whose employment is to be terminated, requiring him to show cause within a period of fifteen days why his employment should not be terminated, and any cause to contrary shown by such person shall be taken into consideration before terminating his service." It manifestly applied to the Legal Advisers who had been appointed before the said Rules came into force, and did not provide for taking any action against a Legal Adviser as may be appointed under the Rules or after the Rules came into force. The impugned action, if it was taken under the Rules of 1964, was without jurisdiction. 9. However, we may deal with the different contentions raised by the parties. The contention of the learned Advocate-General is that the petitioner was appointed by the Corporation with the prior approval of the Government as required under section 3 of Ordinance XXXII of 1965, and with its repeal in 1969 the appointment ipso facto came to an end. It needs to be deter--mined whether the appointment of the petitioner was by the Municipal Corporation or by the Government under the Ordi--nance of 1965. If the appointment was made under the latter Ordinance his appointment after the repeal in 1969, ipso facto came to an end. The repeal of an Act has the necessary consequence of terminating the appointments made under that Act unless such appointments are specifically saved. If on the other hand, the appointment was under the Municipal Administration Ordinance and the West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965, only provided for some conditions to be observed before the appointment could be made, thin the appointment remained operative notwithstanding the repeal. 10. The West Pakistan Statutory Bodies (Appointment and Removal of Legal Advisers) Ordinance, 1965, was enforced by a Gazette Notification dated the 16th of October 1905. The object of the Ordinance was to provide for the control and supervision by Government over the appointment and engagement of Legal Advisers and Legal Practitioners by statutory bodies and their removal. It was provided in section 3: "Notwith--standing anything to the contrary contained in any law, rules or by-laws for the time being in force, no statutory body shall (a) appoint any person as its legal adviser save with the prior approval of Government . . . " It leaves no scope for doubt that the appointment of a Legal Adviser was n t to be made by the Government but by the statutory body, which had to obtain only the prior approval of Government. The position further becomes crystallised by subsection (2) of section 3 which says "Any appointment or engagement made in contravention of subsection (1) shall be of no effect and shall not entitle the person so appointed or engaged to the payment, remuneration, fee or allowance." The Legislature was conscious that the statutory body had the power to appoint and, therefore, to re-emphasise that the prior approval of the Government was mandatory and not directory, enacted subsection (2). Thus the Ordinance provides only for a prior approval of the Government before the appointment of Legal Advisers and not for their appointment. It applies to all statutory bodies, e.g. The Universi--ties, National Bank of Pakistan, State Bank of Pakistan, Water and power Development Authority, Pakistan Industrial Development Corporations, Agricultural Development Corporations etc. The statutory bodies are governed by relevant statutes applicable to them and the rules made thereunder in the appointment of their Legal Advisers. The Ordinance did not denude them o their power but they could exercise the power in future only subject to the condition that they bad to obtain the
---
## Page 5
approval of the Government. See Mirfin v. Artwood ((1869) 4 Q B D 33). In Qamar All v. State (PLD 1965 SC 50) it was held that the power of appointment, notwith--standing the fact that the appointment was to be approved by the Deputy Inspector-General of Police remained vested in the Superintendent of Police alone. Repelling the contention that in such cases the appointment should be deemed both by the Superintendent of Police and the Deputy Inspector-General of Police for which reliance was placed on Muhammad Afzal Khan v. Superintendent of Police, Montgomery (PLD 1961 Lab. 808) it was observed: "If, however, the ruling was intended to lay down that in circumstances similar to those prevailing under the relevant rules, in this case, the prior approval of a candidate for promotion by the higher officer, entailed the consequence that the higher officer also became part of the appointing authority, then we must respectfully dissent from that view. The position of the higher authority in the present case seems to be more akin to that of a Public Service Commission who has to make selection of suitable candidates for appointment to a post but the power of appointment is to be exercised by the competent authority or by Government." Same view was taken in Abdur Rashid Abbasi v. Superintendent of Police (PLD 1967 Lab. 1093). 11. The power to make appointment of a Legal Adviser thus g remained with the Municipal Corporation. We may, therefore) now examine the relevant provisions of law for the appointment of the employees or servants of the Corporation, and also whether a Legal Adviser is its employee. It is provided in section 29 of the Municipal Administration Ordinance, 1960, that the provisions of Chapter VIII of Part II of the Basic Democracies Order, 1959, "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." Article 45 of the Order, therefore, by making the necessary adaptations, as provided in section 29 of the Ordinance, will read as under:- "45. Servants of Municipal Committees.-(1) 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 Municipal Committee who shall perform such functions as are assigned to them in relation to such Municipal Committee by or under this Ordinance. (2) A Municipal Committee may, and if so required by the prescribed authority shall, on the prescribed terms and condi--tions, employ such other servants as are deemed necessary for the efficient performance of its functions under this Ordinance. (3) If, in the opinion of the prescribed authority the number of servants employed by a Municipal Committee under clause (2), or the remuneration fixed for any of them, is excessive, the Municipal Committee shall, on being required by the prescribed authority to do so, reduce the number of its servants or the remuneration of any of them, as the case may be. (4) Subject to the provisions of this Ordinance and the rules- (a) the prescribed authority may suspend, remove, dismiss, or otherwise punish any person appointed under clause (1) and (b) the Municipal Committee may suspend, remove, dismiss or otherwise punish any person appointed under clause (2). (5) The prescribed authority may transfer any of the persons appointed under clause (1) from one Municipal Committee to another Municipal Committee within its jurisdiction." The Legal Adviser is not a Principal Officer because he is not included in rule 2 of the Municipal Committees (Principe Officers) Rules, 1962, except for the Karachi Municipal Corpora--tion. Clause (1) of Article 45 of the Order is, therefore, not applicable to the petitioner. His appointment, in the
---
## Page 6
circumstances, falls under clause (2) of the said Article under which the Municipal Committee could employ him. Under sub clause (a) of clause (4) of Article 45 ibid the prescribed authority p can suspend, remove, dismiss, or otherwise punish any person ` appointed under clause (1), and since clause (1) was not attracted to the Legal Advisers, the prescribed authority could not, in the exercise of the said power, remove the Legal Advisers. It is only the Municipal Committee under clause (b) of clause (4) which could suspend, remove, dismiss or otherwise punish the Legal Advisers who were appointed under clause (2). However, under clause (3) of Article 45 the prescribed authority may reduce the number of servants employed by a Municipal Committee under clause (2) and also reduce the remuneration fixed for any of them. "Prescribed authority" as defined in the West Pakistan Servants of Local Councils and Municipal Committees (Prescribed Authority and Prescribed Terms and Conditions) Rules, 1.965, means "in the case of Principal Officers not included in the Local Councils Service, Government where the post corresponds to a gazetted post in Government service, and in other cases the Controlling Authority". The prescribed authority in the case of the petitioner was, therefore, the Controlling Authority, who alone could reduce the number of Legal Advisers or reduce their remuneration. Clause (1) of section 3 of the Ordinance defines "Controlling Authority" to mean "in the case of such Municipal Committees or class of Municipal Committees as the Government may, from time to time, by notification in the official Gazette, specify in this behalf, the Government and, in all other cases, the Commis--sioner." The Government of West Pakistan by its Notification No SCH(L)/1-15/60, dated the 1st of May 1960, specified, amongst others, the Municipal Committee of Lahore in respect of which the Provincial Government was to be the Controlling Authority. By another Notification No. E&A (HWLOG)--13/20- 60, dated the 31st of December 1960, the Provincial Government notified itself to be the Controlling Authority in respect of Municipal Committees of Lahore and Rawalpindi only. Finally, by a Notification No. SOI(L)-17-A-60, dated the 24th of November 1962, the Government ceased to be the Controlling Authority even in respect of these Municipal Committees and the Commissioners of the respective Divisions thereby became the Controlling authorities in respect of the two Municipal Committees. Thus, at the relevant time when the petitioner was appointed, or the impugned order was passed, it was only the Commissioner who could exercise the powers under clause (2) of Article 45 of the Order requiring the Municipal Committee to employ certain persons, or under clause (31 to reduce the number or remuneration of the servants appointed by the Committee. 12. Under clause (2) of Article 45 of the Order, a Municipal Committee could appoint the Legal Advisers on the prescribed terms and conditions. The word "prescribed" has been defined in clause (321 of section 3 of the Ordinance to mean as "pre--scribed by rules made under this Ordinance. " In the exer--cise of the powers conferred by section 29, read with sec--tion 121 of the Ordinance, the Governor of West Pakistan made the West Pakistan Municipal Committees (Legal Advisers) Rules, 1964, under rule 2 whereof no person could be "appointed by the Municipal Committee as its Legal Adviser on whole time or part time basis, save with the prior approval of Government and subject to such terms and conditions as may be specified in each case by Government". Under rule 4 of the said Rules a Municipal Committee could maintain a list of approved legal practitioners to whom cases on behalf of the Municipal Committee were to be entrusted from time to time and no legal practitioner could be brought on such a list nor his name could be removed from it except with the previous approval of the Government. Rule 4 does not apply to the petitioner's case because he was the Legal Adviser and not a person on the approved list of legal practitioners. Under rule 5 a Municipal Committee was required to forward to Government every quarter a statement showing the progress of cases entrusted by it to its Legal Adviser and any legal practi-- tioner under these rules. There is no provision in the Rules of 1964 for the removal of the Legal Advisers. It may be for the reason that there was a specific provision contained in clause (4) of Article 45 of the Order under which the Committee could remove its employees, and also for the
---
## Page 7
reason that appointments under rule 2 could be made subject to such terms and conditions as were specified in each case by the Government. In the absence of any condition so provided by the Government, the only authority which could remove a Legal Adviser was the Municipal Committee, under clause (4), subject, of course, to provisions of any rules which might have been made in that behalf. 13. It is contended by the learned Advocate-General that the petitioner was not a Municipal servant or employee under the Ordinance but was performing functions of a Legal Adviser under a contract and, therefore, could not seek remedy under Article 98 of the Constitution. Our attention has not been drawn to any contract which might have been executed between the parties. He was a Municipal servant and had been employed under section 29 of the Municipal Administration…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.