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Writ Petition No. 5223 of 1978, decided on 25th June 1979.

---S. 11 read with Ss. 12 & 22--Appointment, terms and conditions of service of employees-Change of nomenclature of job does not amount to abolition of job-Post of Controller in Administration Department not abolished but incumbent transferred to some other Department of Corporation against his terms and conditions of service-Entire exercise meant to oust such incumbent from his permanent Department and to hand over charge of same to another Reasons for such change neither germane to good administration nor for public good but clearly extraneous to provisions of Act-Law looks not at form but substance and never views with favour a colourable exercise of power-Order of such transfer of employee declared to be without lawful authority and of no legal effect-Constitution of Pakistan (1973), Art. 199.-[Civil services].

Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151 ; Abdul Rauf v. Abdul Hamid Khan P L D 1965 S C 671 and State v. Zia-ur- Rehman P L D 1973 S C 49 ref.

---Read with Constitution of Pakistan (1973), Art. 199-Rclationship between Corporation and its employees-Not that of master and servant-Broadcasting Corporation a person performing functions in connection with affairs of Centre-Held, amenable to Constitutional jurisdiction of High Court.-[Master and servant].

Syed Akbar Ali Bokhari v. State Batik of Pakistan P L D 1977 Lah, 234 and Muhammad Aslam Saleemi v. Pakistan Television Corporation P L D 1977 Lah. 852 fol.

R. T. H. Janjua v. National Shipping. Corporation P L D 1974 S C 146 cited but not examined.

--Chap. IV-Functions of Corporation-Word "function" Means doing of a thing, performance, activity, duty peculiar to any office-Word "power"-Means moving force of anything, right to command control or influence for producing an effect.-[Words and phrases].

Ch. Muhammad Farooq for Petitioner.

Syed Iftikhar Ahmad, Deputy Attorney-General for Respondent, No. 1.

Irshad Hassan Khan for Respondents Nos. 2 to 4.

Dates of hearing : 7tb, 9th and 20th May 1979.

The petitioner who was posted as Controller (Administration) in the Pakistan Broadcasting Corporation, challenges the order dated 15th August 1978, by which he was transferred and posted as Controller (Audience Research) at Headquarters to work directly under the Director Programme and the other order dated 26th September 1978, abolishing his post of Controller (Administration) with effect from the same date.

2. The brief facts leading to this petition are that on the creation of Pakistan Broadcasting Corporation (hereinafter referred to as the Corporation) the petitioner was transferred under section 12 of the Act creating it, from: Radio Pakistan and appointed as Controller of Administration under the Director of Administration and Public Affairs, vide order dated 27th February 1973. The appointment was in a temporary capacity with effect from 20th December 1972, until further orders there was, also a probation of 12 months extendable by order either before or after its termination.

3. On 4th June 1975, a decision was communicated through the Deputy Controller (Personnel in the name of Director-General to the effect that the incumbents of all the posts had been placed on a permanent footing with certain exceptions. Admittedly, the case of the petitioner does not fall under any of the exceptions enumerated in that order. It was also stated in paragraph 4 thereof that formal orders in respect of confirmation of the Headquarters and the heads of units will be issued by the Headquarters. It is admitted by both the parties that no formal orders were ever issued.

4. The circular Annexure F', read with the legal advice rendered by the Legal Advisor of the Corporation, shows that a letter was sent to all the Controllers on 6th December 1975, in continuation of a previous letter dated 11th November 1975, asking them to opt for the -department where they would like to have their seniority fixed. The letter Annexure F' sent to the petitioner stated that "Mr. Nasir Ahmad working as Controller in, the. Administration and Public Affairs Department is hereby directed to exercise his option whether he would. like to have his seniority fixed in his present department or the Programme department to which he belonged. The option shall be final and irrevocable and he will have no claim other than that for which he opts."

5. It is stated on behalf of the. petitioner that he did exercise his option and , was accordingly confirmed in the Administration Department. On 14th April 1976, a provisional seniority list of the Controllers in the various departments in the Corporation was circulated for information and inviting objections. It was required that objections may be submitted to the Headquarters by 26th April 1976. The. list included the following departments :-

Programme Department. 6 Controllers.

News Department ... 6 Controllers.

Engineering Department 5 Controllers.

Administration Department 1 Controller.

Finance Department 1 Controller.

6. The petitioner has also shown from various annual confidential reports placed on record and also other letters that he had a brilliant career and flawless service in the Corporation, attracting commendations of his superiors.. According to him; he fell from favour of his superiors after he assisted the Martial Law Authorities in an inquiry instituted in the affairs of the Corporation. The petitioner as directed had placed at the disposal of the Inquiry Committee the entire record and other information to facilitate its job. The grievance of the petitioner is that though he did all that honestly and in the interest of the Corporation yet the would be affected higher officers manoeuvred to get rid of him as soon as the situation was on their side.

7. The first step allegedly taken against the petitioner in that direction was to transfer him on.6th April 1978, as Station Director, Rawalpindi II, i.e. Azad Kashmir and the acting charge of his post was given to Mr. Hanafi, Deputy Controller (Personnel). That order was later withdrawn on the intervention of the C. M. L. A. Secretariat, but the petitioner was not allowed to resume his own charge. Rather the respondents transferred and posted him as Controller (Audience Research) at the P. B. C. Heat. quarters, with effect from the date his leave on medical certificate expires. It was directed that he will work directly under the Director of Programmes (Annexure M').

8. It is to be noted that no pose of Controller (Audience Research) existed at the relevant time. Consequently vide order dated 26th September 1978, the respondents created a post of Controller (Audience Research), at the P. B. C. Headquarters, with effect from 15th August 1978, and abolished the post of Controller (Administration) at the Headquarters from the same date.

9. Earlier in 1975, a recommendation to upgrade the post of Deputy Controller (Personnel), on which Mr. A. A. Hanafi was working, to that of Controller was vide order dated 27th September 1975 (Annexure R/8) to cope with the much increased amount of work. No one, not even Mr. Hanafi, was promoted against it. On 5th October 1978, that post of Controller (Personnel) was redesignated as Controller (Personnel and Administration) with effect from 15th August 1978. The post of Deputy Controller (Personnel) was abolished with effect from 13th September 1978. (Annexure R/11). Vide order dated 13th September 1978, Mr. Hanafi was appointed on regular basis as Controller (Personnel and Administration) with effect from the same date (Annexure N'). It was thereafter on 26th September 1978, that the above post was redesignated as Controller (Personnel and Administration). The above exercise will point out to the circuitous way taken to bring Personnel and Administration section under one Controller. The petitioner was also directed vide order dated 9^th October 1978 to vacate the house in his occupation by 30th November 1978, and find another house of his entitlement so that vacant possession of his house could be restored to the owner.

10. From the resume of the facts given above it was attempted to be shown by the petitioner that the respondents made disjointed and illogical moves without regard of their irreconciliability, just to achieve the preconceived aim of removing him from the Administration Department and to bring in his place a man of their liking and choice. The learned counsel raised the following points for consideration :-

"(a) respondent No: F3 who passed orders Annexures L', M', N, P' was not authorised to act as Director-General of the P. B. C. under section, 8 of the Pakistan Corporation Act ;

(b) the administration- of the Corporation vests in the Board in pursuance to sections 4 and 9 while the Director-General can exercise those powers only if they had been delegated to him ;

(c) the petitioner having been posted and confirmed as a Controller (Administration) could not be transferred without his consent to any other Department against any other post."

11. The respondents in their report and the written statement admitted the entire factual situation, except the motives attached. It was pleaded on their behalf that all the actions were taken in the interest of the Corporation and for good administration and management.

12. The learned counsel also raised a preliminary objection to the maintainability of this petition. According to him the relationship between the petitioner and respondents was that of master and servant and that in the absence of any constitutional or statutory guarantee the petitioner could be asked to work in any Department of the Corporation in public interest . It was submitted that the respondents have neither interfered with the petitioner's seniority nor did they change the terms and conditions of service to his disadvantage. Reliance was placed on a number of decided cases, particularly R. T. H. Janjua v. National Shipping Corporation (P L D 1974 S C 146) in support of the plea raised. The learned counsel for the petitioner relied, on Syed Akbar Ali Bokhari v. State Bank of Pakistan (P L D 1977 Lah. 234) and Muhammad Aslam Saleemi v. Pakistan Television Corporation (P L D 1977 Lah. 852). In fact all the judgments referred to on behalf of both the parties have been discussed in the above two cases.

13. In the first case the plea of master and servant was not accepted as the State Bank employees were governed by Pakistan Essential Services (Maintenance) Act, 1952, and their terms and conditions were subject to some statutory provisions. The latter case was decided by a Full Bench of this Court. Therein the Pakistan Television Corporation, which was respondent, was held to be a person performing functions in connection with the affairs of the Centre and liable to the constitutional jurisdiction of this Court. Both of the above conditions are obtaining in the present case. Therefore, I respectfully follow the same view and am rather in law bound to do so. The preliminary objection raised by the respondent, therefore, has no force and is rejected.

14. As regards the appointment of respondent No. 3, as a Director -General, it. may be noted that according to section 4(2) of the Pakistan Broadcasting Act, 1973, the Board shall consist of a Chairman and not more than seven Directors of whom one shall be Director-General and one the Finance Director. All of them are to be appointed by Federal Government. According to section 5, a Director other than Finance Director shall be a person having experience in broadcasting and public information media. Section 8 also speaks of the appointment by the Federal Government of the Director-General as the Chief Executive of the Corporation. The combined effect of sections 4 and 8 is that while a Director-General is one of the Directors to be appointed as such by the Federal Government, he is also the Chief Executive of the Corporation. Further he may exercise powers delegated to him under section 9.

15. Thus the only requirement in case of a Director-General like Director Finance is that he is to be appointed as such by the Federal Government and his terms and conditions may be different from other Directors. The appointment in this case was specific as he was specifically asked to act as the Director-General. The question whether he will be doing so for a particular period or act as such till the appointment of another Director-General, refers to terms and conditions, to be laid down in pursuance to section 8, and not the appointment itself. It will be no concern of the petitioner to find out as to what are terms and conditions on which the petitioner has been asked to or he has agreed to work as the Director-General. Similarly, he cannot challenge the appoint ment on the basis of terms and conditions. In view of the above, the contention that the appointment order of the Director-General should, say that so and so is appointed as Director-General, has no force.

16. As regards the second point, we may refer to sections 4 and 9 of the Act. Section 4 provides that general direction and administration of the affairs of the Corporation shall vest in the Board and in particular and without prejudice to the generality of the provisions of subsection (1), the Board shall have full power with regard to-

(a) the preparation of the annual revenue budget of the Corporation and approval of that budget and expenditure not included in its annual budget for capital and development expenditure ;

(b) the formulating and implementing of all programmes and policies ; and

(c) the making of plans for technical development within the country and for promotion of the Corporation's interest abroad."

Sections 4 to 9 are part of Chapter III captioned as management' and all the powers exerciseable by the Board are given therein. Section 9 provides that the Board may, from .time to time delegate any of its powers to the Director-General or any other officer, of the Corporation.

17. Chapter IV deals with the functions of the Corporation' which are given in section 10. Function means the doing of a thing, performance, activity, duty peculiar to any office. Power means moving force of anything, right to command, control or influence for producing an effect. Thus the Corporation has been created to do a lob or achieve an object or a purpose but the capacity to control or influence , that activity must be placed at certain places to get the desired performance. That control resides in law, in the Board but it may be given to certain officers by way of delegation under section 9.

18. Chapter V provides for the Establishment'. Section 11, the first section under it reads:-

"The Board may, from time to time, employ such persons as it may consider necessary for the performance of its functions on such terms and conditions as it may prescribe by regulation."

(emphasis supplied)

This section concerns new employees, as well the other posts to which the transferees under section 12 may be promoted. Section 12 authorises the Federal Government to transfer to the Corporation such of the employees of the Government of Pakistan as were in the Information Service of Pakistan. It is provided that the transfer will be made on the same terms and conditions to which those employees were entitled immediately before the commencement of the Act. Such employees were entitled to give their options: It is further stated in subsections (3) and (4) that the persons transferred to the Corporation would cease to be members of the Information Service of Pakistan on such transfer and their terms and conditions of service shall not be altered by the Corporation to their disadvantage.

19. The petitioner belongs to the second category but his future service would be regulated by such regulations as do not alter his terms and conditions to his disadvantage. The petitioner was designated as Controller (Administration) after transfer under section 12 and was asked to opt where he would like his seniority to be fixed. He opted for the Administration Department: This option is irrevocable and so binds both the parties. The first question requiring consideration is whether the Director-General is empowered to transfer the petitioner at all.

20. The Director-General may derive his powers from the following three sources-

(i) as a Chief Executive ;

(ii) as a delegate under section 9 ; and

(iii) from the regulations.

As a Chief Executive, the Director-General can only execute the decision or orders of the Board passed particularly or generally. In this case there is no specific or general order passed by the Board to be executed by the Director-General. Adm4tedly no power to transfer has been delegated by the Board to Director-General. Section 11 read with sections 12 and 22 provide that the terms and conditions of employees shall be regulated by regulations. It is the case of the petitioner that the Board has already framed Service Regulations under section 22 of the Act and that the only power conferred under regulation 5.38 on the Director-General is to transfer an employee from one unit to another, from one section to another or from unit to Headquarters, but no power to transfer a depart mental head within the Headquarter is given to him. The respondents state that these are only draft regulations and that no approval of the Federal Government having been obtained so far, as required by section 22, the draft regulations are not operative. The petitioner had drawn my attention to Annexure XXVI to say that the respondents had in fact been operating above-mentioned Service Regulations. May be that was done unauthorisedly or in anticipation but I have no reason to differ with the stand taken by the respondents particularly when the plea is supported by the Deputy Attorney-General also. I, therefore, proceed on the basis that no such regulations have been framed. Thus there is no power even under regulations authorising the Director-General to transfer the petitioner.

21. The next question is, is there an inherent power in the Chief executive to effect transfer. Such a situation could be presumed, if the Act was silent about it, so as to ensure that the purpose of the Act was achieved. However, the Act in this case specifically conferred all the powers on the Board, subject to the regulations approved by the Federal Government. It is stated by the respondent that as the Board has delegated the power to create and abolish a post to the Director-General in respect of all posts except that of a Director, it should be presumed that the power to appoint, dismiss and transfer have also been delegated.

22. There is, however, nothing to show that a power to transfer, appoint or promote an employee has also been delegated to him. The only delegation of powers brought to my notice is contained in Annexure R/l. This delegation was made on 10th September 1974, and it authorised the Director-General to create posts under certain conditions or abolish posts. 'The contents of the draft regulations show that no inherent power was intended to be left with the chief executive. Had hat been so there would be no necessity to frame regulations with regard to practically all the matters. The very subjects of the regulations point out that all powers were intended to be regulated by the Board by regulations. The draft regulations 5.15 read with 4.08 (10) show that the Chairman and not the Director-General is the appointing authority in the case of Controllers.. Draft regulation 5.38 further shows that transfer means movement of one employee from one unit to another, from one section to another or from a unit to the Headquarters and vice versa in pursuance to a transfer order issued by the appointing authority. It is rightly argued that firstly the transfer in question is not. a movement of the nature specified above and secondly it has not been ordered by the appointing authority. In this view of the matter, the transfer of the petitioner as Controller from one department to another by the Director-General was without authority.

23. The plea taken on behalf of the respondents was that it is a change within the department and that neither petitioner's lien nor any other right or privilege has been disturbed. According to them, the post of Controller (Audience Research) is under the administrative control of Director (Administration and Public Affairs) and so the change is within the same department. Reliance was placed on Annexure R/7, an organisation chart, wherein the Controller (Audience Research) has been shown under the administrative control of the Director (Administration and Public Affairs). Annexure R/6(ii) also shoes that right from the beginning the subject of listener's research has been under the administrative control of Administration Department. What the organization chart shows is that the same Director controls not merely the Administration but the Public Affairs as well. They, however, do not prove that the Audience Research is a part of Administration. In faci Note 7(ii) on the file No. PER-1/1(5)/78, produced by the respondents in support of their case amply clarifies the position. The Note reads as under:-

"The post of Controller (Administration) be abolished with effect from 13-9-1978. (Chairman has agreed that there will be only one post of Controller, in the Administration Department, instead of two)."

Thus the post of Controller (Personnel and Administration) is the only post now left behind in the Administration Department. The post of Controller (Audience Research) concerns Public Affairs and is in no case part of Administration. The transfer of the petitioner is, therefore, outside the Administration Department.

24. I, however, agree with the learned counsel for the respondents that a competent authority can transfer, in public interest, an employee to an equivalent post, involving such duties as he can perform, provided his terms and conditions are not violated. But, if qualification for a particular post have been specified with exactitude, the respondents must show that the petitioner is qualified and that his refusal to do the other job is unreasonable. The apprehension of the petitioner is that as he is not qualified for that job, and as he is likely not to be able to perform it at all or do so efficiently the respondents would get him declared inefficient unsuitable after some time and throw him out of the job.

25. Undoubtedly, a person unqualified for a job will not be able to do it properly and efficiently and, therefore, the apprehension of the petitioner does not ring illogical. Thus though ordinarily, temporary transfer in public interest of a permanent employee from one Department to the other, in any exigency of service, without interfering with his lien, seniority and terms and conditions as to pay, allowance and other admissible amenities, may be quite valid, yet it will not be permitted if the petitioner is admittedly not qualified for the job and fears it a ruse to throw him out of the job. Such an action will amount to interfering with his terms and conditions of service.

26. The post of Controller (Audience Research) had been created after a detailed study, as is clear from Annexure R/4 and R/14 supplied by the respondents. Annexure R/4 shows the staff required for the office of Controller Annexure R/14 is a proposal to set up the Audience Research section. It gives in detail the set up, methods, organization, qualifications, duties and functions of the staff to be employed. The learned counsel for the petitioner referred specifically to the qualifications of the Controller, which are as under :-

"2nd class Masters Degree with 15 years experience or Ph. D. with 12 years experience."

27. It is also stated in the proposal that the recruitment should be made according to the qualifications and the persons already employed, possessing the requisite qualifications, can also compete. No relaxation of these qualifications is provided any where. The plea of the petitioner was that he did not fulfil the above requirements. 'The respondent did not controvert that in term- but stated that the petitioner had experience and knew the job well and could perform those duties. He, however, did not, state that it was only a short term, temporary or make-shift arrangement and that the petitioner would revert to his post soon after the permanent arrangement was made. Nothing was brought on record to show if any step had been taken to employ a permanent Controller (Audience Research) in the meanwhile. It, therefore, appears to me that it was a permanent transfer on- a post for which the petitioner was not qualified. It is further supported by the fact that the post held by the petitioner has been abolished and the other equivalent post created has been filled up by promotion on a regular basis. It, therefore, cannot be claimed that the petitioner's appointment was in public interest. Rather, it amounts to removal of the petitioner from his job.

28. Again, though according to the documents referred to in para. 23 above, the petitioner should have remained under the control of Director Administration and Public Affairs even on transfer to the new post, yet respondent No. 3 specifically directed in his order (Annexure M') that he will work directly under the D1reci:Or Programmes. The learned counsel for the respondents had attempted to show- from other documents that as the Director Administration was no longer there and as his job was being looked after by the Director Progammes, respondent No. 3 felt the necessity of making this specific direction.

29. I am afraid, the explanation given is neither correct nor does it improve the situation. It is clear from the 1st Note on file No. PER-1/2(321)(78 that Qamar Sardar Khan. F. D., was the Director Administration in August 1978, and not the Director Programmes. Again, if the Controller (Audience Research) was a post in the organization of the Director, Administration and Public Affairs as shown in Annexure R/7, there was hardly any need of giving the above direction. Any particular Director who may be looking after that Department in the absence of Director, Administra tion and Public Affairs would automatically control the Controller (Audience Research) as well and the control would revert to the Director Administration, etc. as and when he was available.

30. The next question is was this transfer made mala fide and for extraneous considerations. The following factual situation obtaining in this case amply proves that there was an anxiety on the part of the respondents to oust the petitioner from Administration' and see that he is not able to come back to it :-

(i) on 6th April 1978, the petitioner was transferred to Rawalpindi II station and acting charge of his post was given to Mr. A. A. Hanafi (Annexure R/15) ;

(ii) on cancellation of that transfer, the petitioner was not allowed to join his post but appointed on 15th August 1978, as Controller (Audience Research), a post which did not exist at the relevant time and was created on 26th September 1978 ;

(iii) the post of Controller (Personnel) which was created in 1975, remained unfilled and was redesignated on 5th October 1978, as Controller (Personnel and Administration) with effect from 15th August 1978, to be filled by Mr. Hanafi on 13th September 1978.

(iv) the post of Deputy Controller.(Personnel) was abolished w.e.f. 13ih September 1978 ;

(v) Mr. Hanafi was promoted as Controller on 13th September 1978, and he took over as Controller (Administration and Personnel) though that post was not created on 5th October 1978 ;

(vi) the post of Controller (Administration) was abolished on 26th September 1978, with effect from 15th August 1978 ;

(vii) the post of Controller (Audience Research) was created in the place of abolished post of Controller (Administration) vide order ; dated 24th September 1978, of the Director-General, at paragraph 10 of File No. PER-1/ 1(5)/78.

(viii) the petitioner was also asked, to look for another house of his entitlement, to vacate the official residence in his possession by 30th November 1978, and restore its vacant possession to the owner."

31. Further, the document annexure R/8 placed on record alonwith the written statement shows that an exercise had been undertaken in September 1975, to upgrade the post of Deputy Controller (Personnel) to that of the Controller (Personnel) for the reason that the work load had increased there many fold. No appointment was made against it till September 1978. After an elaborate research by two Specialists, the post of Controller (Audience Research) was created. On the other hand, there is neither any study nor any proposal for merging the posts of Controller of Administration and Personnel or abolishing the post of Controller (Administration). The delegation of powers to the Director-General is, however conditional and not absolute. It provides that the instructions issued by the Board regarding staff composition and work standards are strictly observed'. The post was abolished abruptly on 26th September 1978, with effect from 15th August 1978. The post of Deputy Controller was also abolished on the same date. There is no data or study to show that either the administration field had decreased or the problems connected therewith had vanished.

32. Despite the above disputed exercise for which there appears to be no justification, the fact of the matter is that there was one post of Controller in the Administration Department to start with and there came out the same one job at the end. The change of nomenclature of a' job does not amount to abolition of the job. It comes about only in the very function, the very purpose or the very job is abolished. The, law looks not at the form but the substance and never views with favour a colourable exercise of a power. It is crystal clear from the above that the', post of the Controller in the Administration Department was never abolished. It subsists there even now. The entire exercise referred to above was to oust the petitioner from his permanent Department and to hand over the charge of the same to another. Certainly the reasons; as given above, are neither germane to good administration nor are they for public good. They are clearly extraneous to the Act. Such a situation had fallen to be considered by the Supreme Court in a number of cases and I may here refer to a few. Their Lordships in Federation of Pakistan V. Saeed Ahmad Khan (1) observed as under :-

" Mala fides' literally means in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit one-self. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide . . . . ."

The observations of their Lordships in Abdul Rauf v. Abdul Hamid Khan (PLD1965SC671) are as under :-

" ..A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a rnala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."

The views expressed in State v. Zia-ur-Rehman (PLD1973SC49) are as follows :-

" .. . High Court would be entitled to go into the question of mala fides or colourable exercise of power, for, such exercise of power is not regarded to be action in accordance with law.

It will thus be seen that, so far as this Court is concerned, it has consistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because, no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide . . . . ."

For the reasons given above, the impugned order is, declared to be without lawful authority and of no legal effect. The petitioner shall, therefore, be deemed to be holding his permanent post. The respondents shall also pay costs.

Petition accepted.

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