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Writ Petition No. 708 of 1979, decided on 16th December, 1980.

- Art. 129-Words and phrases-Word "Government"-Legislature itself, held, cannot be said to be Provincial Government.-[Words and phrases].

-- S. 12-Appointment of Governor of Province as "Controlling Authority " under Ordinance XIX of 1961-Not in his capacity as executive head of Province but as persona designata having no connection with Provincial Government-Provincial Government, hence, held, cannot be said to be controlling affairs of Board through Governor.

Word "control"-Held, suggests, in wider sense, power to check, restrain or Influence authority being placed under control of Government-N.-W. F. P. Corporation Employees' (Special Powers) Ordinance (VIII of 1978), S. 3.

---Ss. 9(2) & 20(2)-N.-W. F. P. Corporation Employees (Special Powers) Ordinance (VIII of 1978), S. 2 - Corporation service Government having direct check and control over affairs of Board of Intermediate and Secondary Education, service under Board, held, falls within definition of S. 2 of Ordinance VIII of 1978, and a Cor poration service.-[Civil services].

----Ss. 2 & 3-"Corporation service"-Persons in Corporation service, promoted after 1-1-1972 and before 5-7-1977, held, could be reverted by Governor in exercise of power vested in him under S. 3.

--- S. 3-Maxim: audi alteram partem (no one shall be condemned unheard)-Rule of natural justice as to no person being condemned unheard-No bar on Legislature to take away right conferred by such rule-Legislature, held, empowered to provide for taking of action against any person without giving him opportunity of being heard and S. 3, not giving such right, not ultra vires on such account. [Maxim].

---S. 3 read with Board of Intermediate and Secondary Education Peshawar Ordinance (XIX of 1961), S. 13(6) [as inserted by Act XII of 1976]-Subsection (6) of S. 13-Not given retrospective effect-Ordi nance VIII of 1978, not empowering Governor to place services of petitioner at disposal of Director of Education/Colleges and petitioner not liable to such transfer when joining service, held, vested with right to remain in service of Board and subsequent amendment not retrospective in effect not applicable to his case.-[Interpretation of statutes].

Qazi Muhammad Jamil for Petitioners.

Bashirullah Khan, Asstt. A: G. for Respondents.

Date of hearing: 8th December, 1980.

-The Governor of the North-West Frontier Province, in exercise of power vested in him under section 3 of the North West Frontier Province Corporation Employees (Special Powers) Ordinance (VIII of 1978), ordered, by Notification No. S. O. (H. E.) 11-59/79 dated the 29th September, 1979, the reversion of Gul Naras Khan and Mohabat Khan, employees of the Board of Intermediate and Secondary Education. Peshawar, from Grade 18 to Grade 17 and also placed the services of the former at the disposal of the Director of Education Colleges, Peshawar. Gul Naras Khan has challenged the order of his reversion as well as of his posting out of the Board by a petition under Article 199 of the Constitution while Mohabat Khan has, by invoking the same provisions, questioned the order of his reversion only. This consolidated order will dispose of both the petitions, namely, W. P. No. 708 of 1979, and W. P. No. 3 of 1980, as a common question of law is involved therein.

2. Before dealing with the arguments of the learned counsel for the parties it would be convenient to reproduce the provisions of Ordinance VIII of 1978, under which the impugned notification had been issued. Sections 2 to 5 of the said Ordinance read as follows:-

"2. Definitions.--In this Ordinance, unless there is anything repugnant in the subject or context, person 'in Corporation service' means every person who is in the employment of a corporation or an authority or institution, set up, established, managed pr controlled by the Government of the North-West Frontier Province, and includes the Chairman and the Managing Director of, and the holder of any other office in, such corporation, authority or institution.

3. Certain person to be liable to removal or reversion. Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in Corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the Governor, or a person authorised by him in this behalf, on such date as the Governor, or as the case may be, the person so authorised may, in the public interest direct.

4. Representation.-A person who is removed from service or reverted to a louver post or grade under section 3 may, within fifteen days from the date of receipt of order of removal or reversion, prefer a representation to the Governor:

Provided that, where the order of removal or reversion has been made by the Governor, such person may, within the time aforesaid, submit to the Governor a petition for review of the order.

5. Service of Corporation to 6e service, of Pakistan.--Service of a corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service, or reverted to a lower post or grade under this Ordinance, not being a person who is on deputation to a corporation from any other Province or the Federation shall be deemed to be a civil servant for the purposes of the North-West Frontier Province Tribunals Act, 1974 (N.-W. F. P. Act I of 1974)"

Qazi Muhammad Jamil and Qazi Muhammad Anwar, Advocates, who appeared for the two petitioners argued that the Governor had no power to pass any order affecting the petitioners under Ordinance VIII of. 1978, inasmuch as the said Ordinance deals with "persons in Corporation service" and that the petitioners' service does not come within the definition of that service as given in section 2 of the Ordinance. It was urged that the Board of Intermediate and Secondary Education being an autonomous statutory organization set up by the Legislature of the North-West Frontier Province under the West Pakistan (Board of Intermediate and Secondary Education. Peshawar) Ordinance (XIX of 1961), the Government has neither established it nor does it manage or control it. As such, it was argued, the service of the Board does not come within the definition of "Corporation Service" as given in section 2 above and consequently the Governor had no power to revert the petitioners from Grade 18 to Grade 17 in exercise of powers under section 3 ibid.

3. The learned Assistant Advocate-General appearing for the respon dents has first of all urged that since the Board was constituted by law made by the Provincial Legislature, it shall be deemed to have been set up and established by the Government. In this contention we find no force inasmuch as the Legislature alone does not constitute the Government. The definitions of the words "Government" and "Provincial Government" as given in clauses (28) and (51) of section 2 of the West Pakistan General Clauses Act (V of 1956), are not exhaustive but Article 129 of the Constitu tion is clear enough to indicate that the Provincial Government consists of the Chief Minister and the Provincial Ministers who are to act through the Chief Minister. The Word "Government" in the ordinary sense means the political or civil power vested in a person or body of persons for exercising functions of the State. This is relateable to capacity of invoking and directing the activities of the body politic and power to make one's will effective in any Department or governmental action. It has in some places been defined as the aggregate of all persons or group of persons who possess share of civil power. The Legislature itself which has power to make laws cannot, therefore, be said to be the Provincial Government.

9. The learned Assistant Advocate-General then argued that since the Governor of the Province, under Ordinance XIX of 1961, is the controlling authority and has overall superintendence in respect of the Board, the Board shall be considered to be subject to the control of the Provincial Government. In this argument too there is no substance inasmuch as the Governor by himself, under the Constitution, cannot perform any function of the province though the executive authority of the province has to be exercised in his name. The persons exercising the executive authority are the Chief Minister and the Provincial Ministers who act through him. The appointment of Governor of the Province as the "controlling authority" under Ordinance XIX of 1961 is not in his capacity as the executive head of the province, but he acts a persona designata having no connection whatsoever with the Provincial e Government. On this ground also, therefore, it is difficult to accept the view that the Provincial Government controls the affairs of the Board through the Governor.

5. The learned counsel appearing for the petitioners have strenuously argued that in the scheme of Ordinance XIX of 1961, the Board is an independent autonomous authority free from the Governmental control and, therefore, the service under the Board does not come within the definition of the Corporation Service as given in section 2 of Ordinance VIII of 1978. It is clear, as already observed, that the Board is not set up or established by the Provincial Government. However it is to be seen whether the Board, is, in any way, under the Management and control of the Government. In Black's Law Dictionary (Revised Fourth Edition) the word "control" has been defined as under:-

"Power or authority to manage, direct, superintend, restrict, regulate direct, govern, administer, or oversee."

In wider sense the word "control" suggests the power to check, restrain o influence the authority which is being laced under the control of the Government. We have to see whether under the scheme of Ordinance XIX of 1961, the Government has any control over the Board. Section 9(2 provides that the Government may by general or special order modify the jurisdiction of the Board with regard to its territorial limits and the institu tions. Again section 20(2) provides that the Regulations made by the Board, which in a way lay down the scheme of carrying out day to day affairs of the Board, are subject to the scrutiny of the Government. The Government bas power to approve the Regulations made by the Board or to disapprove them with its own recommendation for further consideration. In other words no Regulation made by the Board shall have the force of law unless it is approved by the Government. This clearly shows that the Legislature never intended to leave the Board free of Governmental control in all respects. In other words unless the Government so desires the Board cannot carry out its day to day affairs unhindered without the control of the Government: for it is the Regulation made by the Board and approved by the Government which would provide for the machinery in which the day-to-day affair of the Board are to be carried out. This clearly shows that the Government has a direct check and control over the affairs of the Board and as such the service under the Board does come within the definition of section 2 of Ordinance VIII of 1978.

6. In view of the above finding there is no room for doubt that the two petitioners were the persons in "Corporation Service" as defined in section of Ordinance VIII of 1978, and since they were promoted after the Ist day of January, 1972, and before the 5th day of July, 1977, they could be reverted by the Governor in exercise of the power vested in him under section 3 of the said Ordinance.

7. The learned counsel then argued that section 3 of Ordinance VIII of 1978, gives arbitrary power to the Governor to deal with particular class of employees without giving them opportunity of being heard and, therefore, it violates the principles of the Constitution and the natural justice. In this argument also there is no substance inasmuch as the law governs the employ appointed or promoted during a specific period and in this respect there is no discrimination between one person and the other person who is employed or promoted in that period. The rule of natural justice that "no one shall condemned unheard" has to be read in every statute if the said statute does not provide for giving reasonable opportunity of being heard before taking any penal action, nevertheless there is no bar on the Legislature to take away the right of being heard as has been done by section 3 of Ordinance XIII of 1978. The Legislature has full power to provide that any, action may be taken against any person without giving him opportunity of. being heard and such a provision would not be ultra vires.

8. The net result of the above discussion is that since the two petitioners were in Corporation Service within the definition of Ordinance VIII of 1978, and were promoted during the period given in section 3 ibid, the Governor had full power to revert them to lower posts and, therefore, the action of the t Governor in reverting two petitioners from Grade 18 to Grade 17 is quite valid and is not open to challenge in this Court. Their remedy lies in approaching the Service Tribunal by virtue of section 5 of Ordinance VIII of 1978. The petition of Mohabat Khan (W. P. No. 3 of 1980), which challenges his reversion only is, therefore, dismissed.

9. We are now left with the power of the Governor to place the services of Gul Naras Khan, petitioner in W. P. No. 708)79 at the disposal of the Director of Education Colleges. Ordinance VIII of 1978, does not give any such power to the Governor. The learned Assistant Advocate 9 General has, however, argued that subsection (6) of section 13 of Ordi nance XIX of 1961, empowers the controlling authority, which in the present case is the Governor, to place the services of any of the officer, or other employees of the Board at the disposal of Government or an university or institution for such period and on such terms and condition as may be determined by him provided that such terms and conditions are not less favourable than those admissible to him immediately before his transfer: No doubt this is so but then the fact cannot be denied that subsection (6) ibid was inserted for the first time in Ordinance XIX of 1961, by Act XII of 1976, which came into force on the 16th day of October, 1976. The provisions of subsection (6) ibid have not been given retrospective effect When Gul Naras Khan, petitioner, joined the service of the Board he was not liable to transfer from the Board to any other institution. He had thus a vested right to remain in the service of the Board which is local at Peshawar. Any amendment made in Ordinance XIX of 1961 to affect his vested right of remaining in the Board of Peshawar would not apply to his case unless such amendment is specifically given retrospective effect or by necessarily intendment it operates retrospectively. Subsection (6) of section 13 being not retrospective in effect and the intention of its retrospective operation not being manifiest from its language, it does not apply to Gul Naras Khan who was employed in the Board long before the amendment came into force. The order of deputation of Gul Naras Khan from the Board to a post under the Director of Education Colleges is, therefore without lawful authority and hence not binding on him. The result is that the petition of Gul Naras Khan (W. P. No. 708/79), though dismissed with regard to his reversion for the reasons already given, is accepted with regard to his transfer from the Board to a post under the Director of Education Colleges. It is directed that he be re-posted on a suitable employment directly under the Board.

S. A. H. Orders accordingly.

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