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Intra-Court Appeal No. 35 of 1986, decided on 28th May, 1986.
-- S. 70--Motor Vehicles Act (IV of 1939), S. 43-A--Road Transport Board--Establishment and duration of--Membership of Transport Board- Terms of appointment--Terms of Establishment of Road Transport Board and appointment of its Chairman and Members, held, were two separate and independent matters--While no period was prescribed for which Board could be established, there was specific provision dealing with terms and Office of 'Members--Membership of Board could be legally changed but there was no limit on duration of Board itself- --Occasional change made in membership of Board 'by Government would not affect its legal existence.
Black's Law Dictionary, Third Edn. ; Halsbury's Laws of England, Fourth Edn., Vol. 9 and American Jurisprudence, Vol. 13, p. 226 ref.
---S. 70(2) to (10)--Notification No.TR, SOII-6-1-75, dated 14-1-1985- "Perpetual succession," connotation of--By superseding notification whereby Chairman and Members of Road Transport Board were appointed and thereafter refusing to appoint new Members and Chairman, legal existence of such Transport Board, held, would remain unaffected--Road Transport Board being statutory body, abolition thereof, wi, hout bringing about suitable amendments in Ordinance XIX of 1965 would be inconceivable.
Gurdit Singh Aulakh v. State of Punjab A I R 1970 P & H 491 ref.
---S. 20--Order sought to be rescinded or modified--Requirements- Authority exercising power under S. 20 of Act VI of 1956, held, was required to act in accordance with law, while issuing notification or making order sought to be rescinded or modified--Section 20 of Act 1965, embodies a rule of construction and does not itself confer any power.
Gopi Chand v. Delhi Administration A I R 1959 S C 609 ref.
---Rule of--Rule of locus poenitentiae, on which common law was based, held, was subject to limitations inasmuch as order to be recalled should not have been acted upon before being re-called and same should not have effect of destroying vested rights--Officers and employees of Road Transport Board being governed by statutory rules, had acquired certain rights under said rules which could not be taken away by dissolving such Board--Rule of locus poenitentiae would not be attracted in such case.
Shahbaz v. Crown P L D 1956 FC 46; The Trustees of the Port of Karachi v. Messrs Malik Muhammad Din & Sons P L D 1962 (W.P.) Kar. 34; Maqbool Ahmad and others v. The Province of Sind 1979 CLC 668; Durga Prasad v. State of Uttar Pradesh A I R 1952 All. 959; Bar Council of Delhi v. The Bar Council of India A I R 1975 Delhi 200; Isherdas Sahni & Bros. and another v. The Delhi Administration and others A I R 1980 Delhi 147; Dr. Mahboob Rabbani v. Government of West Pakistan P L D 1963 (W.P.) Lah. 53; G.L. Battacharya v. The State etc. P L D 1964 S C 503; Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd., Chittagong P L D 1970 S C 439; Qazi Sharif Hussain v. Chief Settlement Commissioner 1984 C L C 1420 and Musharaf Ali v . Province of Punjab 1981 P L C (C.S.) 29 ref,
---Arts. 4 & 129--Executive authority of Province, exercise of--Executive authority of Province, would be exerciseable subject to constitution- Executive functions which are residue of function of Government after legislative and judicial functions have been taken away, held, could be performed keeping in view provisions of Art. 4 of Constitution which entitles every person to protection of law and to be treated in accordance with law.
Constitution of Islamic Republic of Pakistan, 1973; A I R 1951 All. 357; Ram Jawaya Kapur and others v. The State of Punjab A I R 1955 S C 549; Jamal Shah v. Election Commission P L D 1966 S C 1; Attorney-General v. De Keyser's Royal Hotel Limited 1920 A C 508; Province of West Pakistan v. Din Muhammad and others P L D 1964 SC 21 and Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan and others P L D 1971 S C 811 ref.
---S. 70(10)--Punjab Road Transport Board Rules, 1972, Rr. 7 & 13--Rule-making power, exercise of--Rule-making authority while exercising powers of rule making, held, could not place employees of Board under control of a person other than Board unless a provision to that effect was made in Ordinance XIX of 1965, itself.
--S.7(7)--Retirement of employees--Exercise of power--Powers of retirement from service under R.7(7) of 1972 Rules, held, could be exercised only by appropriate authority--Administrator appointed by Governor to run affairs of Transport Board being not appropriate authority, order of retirement of employees passed by him would be without lawful authority--Even otherwise, when a person was removed from service on basis of some charge, such person must be afforded opportunity of being heard before order of his removal from service was passed.
A.B.M. Habibur Rehman v. The Director of Technical Education East Pakistan Dacca and others P L D 1969 Dacca 948 ref.
---R. 33.1--Retirement from service--Age of superannuation reduced by Administrator--- Administrator not legally competent to amend rule or pass order of retirement--Employee having vested right to be in service till age of sixty, held, could not be retired till completion of sixty years of age--Orders retirement was even discriminatory because some other employees of Board having crossed sixty years of age were being retained in service.
---R. 33.2--Notification No.TR-II/10-20/84, dated 9-5-1985--Retirement on completion of 25 years of service--Retirement/termination of service by Administrator, having no legal authority to pass such orders, held, would not be sustainable--Notification dated 9-5-1985, dissolving Punjab Road Transport Board issued by Governor and all subsequent notifications and orders including order of retirement from service of employees, thereof, were declared to be illegal, without lawful authority and of no legal effect.
Mian Dilawar Mahmood for Appellants.
Tanvir Ahmad Khan A.A.-G., S.M. Zafar, Shafiqul Islam and Zahid Hussain for Respondents.
Dates of hearing: 12th to 16th April, 1986.
--The present I.C.A. (No. 35 of 1986) and I.C.A. Nos. 36, 42, 50 and 51 of 1986 are directed against judgment, dated 14-1-1986 passed by the Single Judge of this Court whereby appellants' writ petitions challenging Notification No. TR-II/10-203/84 dated 9-5-1985 issued under section 20 of the Punjab General Clauses Act, 1956 dissolving the Punjab Road Transport Board and all subsequent Circulars, Notifications/ Orders issued by the Provincial Government and the Administrator of the defunct-Punjab Road Transport Board Employees Surplus Pool as being illegal, void and without lawful authority were dismissed.
2. Briefly stated, the facts giving rise to these appeals are that Sh. Akbar Hussain appellant in I . C . A . No. 35 and Ch. Sanaullah appellant in I . C . A . No. 36 were holding the posts of Accounts Officers while Syed Muhammad Munir Gilani appellant in I . C . A . No. 42 and Syed Ghulam Mustafa appellant in I. C. A. No. 51 were working as Director (Stores) and Assistant Director (Labour Welfare) respectively under the Punjab Road Transport Board when on 9-5-1985 Notification No. TR-II /10-203/84 was issued by the Governor of the Punjab under section 20 of the Punjab General Clauses Act, 1956 (hereinafter to be referred to as W.P. Act VI of 1956), dissolving the Punjab Road Transport Board. Fayyaz Ahmad appellant in I. C. A. No. 50 was working as Senior Medical Officer of the Punjab Road Transport Board at the time of its dissolution. According to the notification, all officers and employees of the Board were to be placed in the surplus pool maintained by the Provincial Government for the purpose of payment of pay last drawn by them till their adjustment in other organizations, or their services were dispensed with in terms and conditions of services applicable to them prior to the dissolution of the Board. On 12-5-1985, another Notification No. TR-II/IC 203/84 was issued whereby the officers and employees of the defunct-Punjab Road Transport Board were placed in surplus pool under the operational control of the Managing Director, Punjab Urban Transport Corporation. On 17-7-1985. Mr. Muhammad Afzal Kahut, Managing Director of the Punjab Road Transport Corporation was appointed as Administrator of the Punjab Road Transport Board Surplus Employees pool. vide Notification No. TR-11/10-203/84. He was empowered to exercise powers as Government, Punjab Road Transport Board or as Chairman or Managing Director Punjab Road Transport Board, as the case may be, in accordance with the principles contained in various rules applicable to the employees of the Board. By exercising the power conferred under the aforementioned notification, the Administrator modified the rules applicable to the employees of the Board vide order, dated 25-8-1985. On 12-9-1985, the Administrator purporting to act under Rule 7(7) of the Punjab Road Transport Rules, 1972, passed order retiring Sh. Akbar Hussain appellant from service. Through a similar order passed on 12-9-1985, Ch. Sanaullah appellant was also retired from service. On 15-5-1985, Munir Ahmad Gilani appellant was forbidden from attending the office and was directed to surrender the staff car and official telephone installed at his residence by an order passed by the Administrator. On 14-9-1985, Munir Ahmad Gilani appellant was retired from service on attaining the age of superannuation by the order of the Administrator purporting to have been passed under Rule 33.1 of the Punjab Road Transport Service Rules, 1959. Ghulam Mustafa Shah appellant was ordered not to attend the office w.e.f. 18-5-1985 through an order passed by the Administrator. On 31-8-1985 he was retired from service on having completed twenty-five years of service by an order purporting to have been made under Rule 33.2 of the Punjab Road Transport Board Service Rules, 1959 by the Administrator. Dr. Fayyaz Ahmad appellant, who was also placed in the surplus pool was ordered by the Administrator not to attend the office w.e.f. 18-5-1985. He was also required to surrender official telephone. On 31-8-1985 his appointment was terminated by the Administrator in terms of clause (II) of his appointment letter, dated 30-10-1983 as he was still on probation.
3. The appellants filed writ petitions challenging Notification No. TR-II/10-203/84, dated 9-5-1985 issued by the Governor of the Punjab whereby the Punjab Road Transport Board was dissolved. They also assailed the consequential notifications and orders issued by the Governor of the Punjab and Mr. Muhammad Afzal Kahut as Administrator of the surplus pool of the employees of the defunct-Board. The appellant's contention was that the Punjab Road Transport Board was statutory body established under section 70 of the Motor Vehicles Ordinance, 1965 and as such it could not be dissolved in the absence of statutory provisions conferring power of dissolution. Section 20 of W.P. Act VI of 1956 could not be pressed into service for dissolving the Board particularly when the dissolution of the Board adversely affected the legal rights of its employees. According to the appellants, orders passed by the Administrator of the surplus pool of the employees of the defunct- Board affecting the appellants' rights as employees of the Board, were illegal and without lawful authority.
4. The writ petitions were contested on behalf of the Provincial Government and the Administrator of the surplus pool of the employees of the Punjab Road Transport Board and it was pleaded that the Punjab Road Transport Board could be legally dissolved by exercising power conferred by section 20 of the W.P. Act VI of 1956 and the Administrator of the surplus pool of the employees of the defunct-Board had in exercise of the legal authority conferred on him by the Governor acted lawfully and passed the impugned orders in accordance with law.
5. After hearing the learned counsel for the parties, the learned Single Judge came to the conclusion that the Governor was legally competent of dissolve the Punjab Road Transport Board which had been established through a notification, by having recourse to the provisions of section 20 of W.P. Act VI of 1956. It was further observed that the appellants had no legal right to challenge the orders passed by the Administrator in relation to their employment under the Punjab Road Transport Board because with the dissolution of the Board, their services could be dispensed with as far as possible in accordance with the terms and conditions admissible to them prior to the dissolution of the Board and the Administrator had acted within lawful authority conferred on him by the Governor.
6. The crucial point requiring determination in all these appeals is regarding the authority of the Governor to dissolve the Punjab Road Transport Board which was established under section 70 of the Motor Vehicles Ordinance, 1965 (hereinafter to be referred as the Ordinance). The appellants' contention is that in the absence of specific provisions empowering the Governor to dissolve the Board established under the Ordinance, the provisions of section 20 of W.P. Act VI of 1956 do not empower the Governor to dissolve the Board. It has been pointed out that the impugned notification, dated 9-5-1985 supersedes notification No. TR(SOII)6-175, dated 16-7-1975 by invoking the provisions of section 20 of W.P. Act VI of 1956. The last mentioned notification is to be construed to have been issued under subsection (2) of section 70 of the Ordinance as through this notification Chairman and members of the Board were appointed for a term of two years. The establishment of a Board for the purpose of operating road transport services is provided in subsection (1) of section 70 of the Ordinance. According to learned counsel for the appellants, the existence of the Board established under subsection (1) of section 70 of the Ordinance is not affected by supersession of notification whereby the Chairman and the members of the Boards were appointed. Notification, dated 9-5-1985 has merely affected composition of the Board and not its existence. The Punjab Road Transport Board established under section 70(1) of the Ordinance is a body corporate and has perpetual succession which means the continuous existence of the Board has been ensured by the statute itself so as to enable it to manage its affairs and hold property. Learned counsel for the appellants has referred to the meaning of 'perpetual' given in Black's Law Dictionary, Third Edition as 'never ceasing; continuous; enduring; lasting; unlimited in respect of time; continuing without intermission or interval'. In the same Dictionary term 'perpetual succession' has been interpreted. That continuous existence which enables a corporation to manage its affairs, and hold property without the necessity of perpetual conveyances, for the purpose of transmitting it. By reason of this quality, this ideal and artificial person remains, in its legal entity and personality, the same, though frequent changes may be made of its members. Pointing out the characteristics of a corporation given in paragraph 1208 of the Halsbury's Law of England, Volume 9, Fourth Edition, learned counsel for the appellants have referred to the passage from the law of Corporation that 'an essential element in the legal conception of a corporation is that its identity is continuous. That is that the original member or members and his or their successors are one."
7. Learned counsel appearing on behalf of the respondents, after briefly stating the history of establishment of the Road Transport Board, has argued that it is no better than a Corporation aggregate which according to the definition given in paragraph 1204 of Halsbury's Law of England, Volume 9 (Fourth Edition) is a collection of individuals united into one body under a special domination. A corporation aggregate comes to an end when the members cease to be its members. Referring to paragraph 1395 of the same book, learned counsel has relied on the passage: "So when an integral part of a corporation is gone, without whose existence the functions of the corporation cannot be exercised, and the corporation has no means of supplying that integral part, the corporation is dissolved, at least for certain purposes, and the Crown may revive all the rights which the corporation had and attach them to a new corporation." According to the learned counsel, the term 'perpetual succession' used in section 70(1) of the Ordinance does not mean that the Board once established by the Government is to continue for ever. In Monogram 83 under the heading, GENERALLY: in American Jurisprudence, Volume 13, at page 226, it has been stated "A corporation the charter of which does not limit its existence to a definite period of time continues, as a general rule, in legal contemplation for the time prescribed by a general statute applicable to the category to which it belongs or until it has been dissolved by some prescribed method. On the other hand, a corporation, though unlimited in duration by its charter and though given the capacity of perpetual succession, cannot be regarded as 'everlasting' within the general and common meaning of that word. It may be dissolved and cease to exist for want of members by voluntary surrender of franchises, by forfeiture, by misuser, etc.
8. Referring to the meaning of phrase 'perpetual succession' given in Monogram 84 in the aforementioned book, learned counsel for the respondents has relied on the statement 'As a general rule, the words 'perpetual succession' as used in charters, often in connection .with a further provision limiting the period of corporate existence to a certain number of years, means nothing more than that the corporation shall have continuous and uninterrupted succession so long as it shall continue to exist as a corporation, and are not intended to define its duration." 'Learned counsel for the respondents has referred to the previous notifications issued by the Governor of the Punjab under section 70 of the Ordinance whereby the term of the Punjab Road Transport Board was extended from time to time which according to the learned counsel clearly indicated that the Board was not a permanent body and the term 'perpetual succession' used in subsection (1) of section 70 of the Ordinance in relation to the Board, would not make it an everlasting body. In this connection he has referred to Corpus Juris, Volume XIV-A where at page 1099, phrase 'perpetual succession' has been explained as "where the life of a corporation is limited by law to a fixed period, it is legally dead at the expiration of the statutory period, notwithstanding the fact that the charter provides that it shall have 'perpetual succession' since this means merely continuous succession during the period for which it is created".
9. For resolving the controversy as to whether the Road Transport Boards established by the Provincial Government firstly, under the Motor Vehicles Act, 1939 (Act IV of 1939) and after its repeal, under the Ordinance, are permanent bodies, it is necessary to consider the legislative history of creation /establishment of these bodies.
10. The question of the coordination of road and railway and the method by which the object could be secured consistently with the public interest was considered by the Government of India as early as 1933. In the same year the Road Rail Conference convened by the Government passed resolution inter alia recommending the control of public service and goods motor transport. Two years later, the first Transport Advisory Council made definite recommendations to the same effect. In 1936 a bill was introduced to amend the Indian Motor Vehicles Act, 1914. Later on, Government decided to present a more comprehensive bill. The bill after certain amendments was enacted as Act No. IV of 1939 and was known as Motor Vehicles Act, 1939. It dealt with licensing of drivers of motor vehicles, registration of motor vehicles, control of transport vehicles, constructions, equipments and maintenance of motor vehicles, and insurance of motor vehicles against third party risks etc. Sections 42 and 43 of the Act, which are relevant for our purpose gave power to the Provincial Government to control road transport. It inter alia provided for the issuance of permit by a Regional or Provincial Transport Authority authorising the use of the vehicle in any public place subject to certain conditions and also conferred powers on the Provincial Government to control road transport by prohibiting or restricting throughout the Province or in any area or on any route within the Province the conveying of long distance goods traffic generally or of prescribed classes of goods by private or pu. is carriers. Provincial Government could also fix maximum or minimum fares or freights for stage carriages and public carriers to be applicable in the Province. Soon after the independence of the country, the West Punjab Government enacted the West Punjab Road Transport Act, 1948 which a view to establishing West Punjab Road Transport Board for carrying goods and passengers by road from any place in West Punjab to any other place whether in West Punjab or elsewhere. The Act received the assent of the Governor-General on 28-6-1950 and it was to come into force on such day as the Government might by notification in the official Gazette appoint in that behalf. Following the decision of the West Punjab Government to establish a Road Transport Board in the Province, the Central Government carried out certain amendments in the Motor Vehicles Act, 1939, by means of Motor Vehicles (Amendment) Act, 1951 (Act XVII of 1951). Through this Act, the following new sections 43-A, 43-B and 43-C were inserted after section 43 of the Motor Vehicles Act, 1939:-
"43-A. Road Transport Board.--(1) Where a Provincial Government decides to operate transport services it shall constitute a Road Transport Board.
(2) The Board shall consist of seven members of whom four including the Chairman shall be appointed by the Provincial Government and three by the Central Government.
(3) Members of the Board shall hold office for such period, as may be specified in the order appointing them, but notwithstanding the foregoing provision any member may resign or may be removed at any time, or may be re-appointed, by the appointing authority.
(4) The Provincial Government shall consult the Board in all matters relating to the co-ordination of road and rail transport and in the fixation of fares and freights under this Chapter.
(5) The Road Transport Board shall reserve for and allot to the Central Government, as represented by the railways, not less than 25% of its total share capital.
(6) If a dispute arises between the Central Government and a Provincial Government in respect of any matter concerning the fixation of fares and freights, and no settlement is arrived at by negotiation, the dispute shall be referred to the arbitration of the Chief Justice of the Federal Court or of a Judge of the Federal Court nominated by him, and the award of the Chief Justice or Judge aforesaid shall be final and binding on the parties shall not be called in question in any Court of law nor shall anything in the Arbitration Act, 1940, apply to such arbitration.
(7) The Provincial Government shall make with rules, with the previous concurrence of the Central Government and not inconsistent with the Act, prescribing powers and functions of the Board.
43-B. Jurisdiction of Transport Authorities Barred.--(1) The Road Transport Board may operate motor on any route it May think fit and where it so operates such transport, the Provincial Transport Authority and the Regional Transport Authority shall, notwithstanding anything in this Act, have no jurisdiction to that transport.
(2) Where the Provincial Transport Board had cancelled any permit or class of permits under clause (iii) of subsection (1) of section 43, the Provincial Transport Authority and the Regional Transport Authority shall, notwithstanding anything in this Act, have no jurisdiction in respect of such permit or class of permits.
43-C. Road Transport Board to have power to acquire property of Road Transport Operators.-- (1) The Road Transport Board shall have power to acquire any property--movable or immovable used in, or for, or ancillary to, the operation of any motor transport conducted under a permit granted under this Chapter.
(2) Such acquisition may be made by serving a notice of acquisition on the owner of the property, or if such owner is not readily traceable or the ownership is in dispute, by a notice of acquisition published in the official Gazette of the Province, and shall take effect from the beginning of the day on which the notice is served or published.
(3) For any property so acquired there shall be paid compensation equivalent to the market value of the property acquired to be calculated in such manner as the Provincial Government may prescribe.
(4) If any dispute arises to the amount of compensation payable under subsection (3) it shall be referred to the arbitration of a person who is or has been a High Court Judge and his award shall be final and binding on the parties and shall not be called in question in any Court of law nor shall anything in the Arbitration Act, 1940, apply to the arbitration.
11. After the above amendments in the Motor Vehicles Act, 1939 the Provincial Government established Road Transport Board in the Provinces for the purpose of operating transport service. These Boards continued to function till the establishment of the Province of West Pakistan. In 1958 the Motor Vehicles Act, 1939 was amended by the Motor Vehicles (West Pakistan Amendment) Act, 1958 (Act XIX of 1958). Subsection (1) of section 43-A of the Motor Vehicles Act was substituted to enable the Provincial Government to establish West Pakistan Road Transport Board. The Provincial Transport Boards, which were functioning in the Provinces before the establishment of Province of West Pakistan were allowed to continue to function till the establishment of the West Pakistan Transport Board. It was also provided that on the establishment of the West Pakistan Transport Board the entire undertaking of the Provincial Boards would stand transferred to the West Pakistan Road Transport Board.
12. In 1963 it was decided that the West Pakistan Road Transport Board be replaced by the Road Transport Corporation. Section 43-A of the Motor Vehicles Act, 1939 was accordingly amended by section 5 of the Motor Vehicles (West Pakistan Amendment) Ordinance, 1963 (Ordinance No. XI of 1963) Section 6 of the above Ordinance specifically provided that until the establishment of Road Transport Corporation the West Pakistan Road Transport Board shall continue to function. By section 7 the Road Transport Corporation was declared to be successor- in-interest of the Board and it was provided that the undertakings, assets and liabilities of the Board were to stand transferred and vested in the Corporation.
13. In 1965 the West Pakistan Motor Vehicles Ordinance, 1965, was promulgated, which repealed the Motor Vehicles Act, 1939 except Chapters VII and VIII and section 125. Section 70, of the Ordinance provided for the establishment of a Road Transport Corporation consisting of a Chairman and two members to be appointed by the Government for a term of three years. The Road Transport Corporation established under the Ordinance continued to function till the dissolution of Province of West Pakistan.
14. In 1972, the Punjab Government amended the West Pakistan Motor Vehicles Ordinance, 1965 by the West Pakistan Motor Vehicles (Punjab Amendment) Ordinance, 1972 (Punjab Ordinance XIX of 1972) which later on was enacted as the West Pakistan Motor Vehicles (Punjab Amendment) Act, 1973. Section 70 of the Ordinance was amended to increase the number of members from 2 to 7 and for the words 'Road Transport Corporation' wherever occurring in the Ordinance the words 'Punjab Road Transport Board' were substituted. Section 4 of the amending Act provided that the Road Transport Corporation would continue to function till the Road Transport Board was established. According to section 5 the Board was to be successor-in-interest of the Road Transport Corporation and its undertakings, assets and liabilities were to stand transferred to and vested in the Board. On 14-10-1972 the Governor of the Punjab established the Punjab Road Transport, vide notification No. 3191-72/1617-II. The Board was reconstituted on 16-7-1975 in view of the provisions of new subsection (2) of section 70 of the Ordinance as substituted by the West Pakistan Motor Vehicles (Punjab Amendment) Act, 1975 (Act XXIll of 1975), whereby the number of the members of the Board was increased from 7 to 11. The term of office of the members was fixed as two years, which, however, was subsequently extended from time to time. It was last extended for a period of six months with effect from 16-1-1985 by Notification No. TR-SOII-6-1/75, dated 14-1-1985 till 16-5-1985. The Board was dissolved by the Governor on 9-5-1985 through the impugned notification.
15. It may be noticed that it was in 1951 that provisions were made in the Motor Vehicles Act. 199 to enable the Provincial Government to operate road transport service if it so decided. For this purpose the Provincial Governments were empowered to establish Road Transport Boards. It was specifically provided that the Board may operate motor transport on any route it may think fit. The jurisdiction of the Provincial Transport Authority and regional Transport Authority was excluded in relation to the transport operated by the Board. It is an admitted fact that the Provincial Road Transport Boards/ Corporations established after the insertion of section 43-A in the Motor Vehicles Act, 1939 continued to function uninterruptedly till they were replaced by each other as a result of legislative amendments. Whenever any amendment was made in law it was ensured that the Board or Corporation functioning before the amendment should continue to function till it was replaced by the Board or Corporation established under the new law. The continuous functioning of the Board is necessary as in all matters relating to the co-ordination of rail and transport and in the fixation of fare and freights under Chapter XIV of the Ordinance it is incumbent upon the Provincial Government to consult the Board. In other words the existence of the Road Transport Board is a legal requirement, which cannot be dispensed with as long as the relevant provisions of law i.e. subsection (9) of section 70 of the Ordinance is not amended. A careful examination of the provisions of section 70 of the Ordinance of section 43-A of the Motor Vehicles Act, 1939 would show that the establishment of the Road Transport Board and the appointment of its Chairman and members are two separate and independent matters. While there is nothing in subsection (1) dealing with the period for which the Board may be established, there is a specific provision in subsection (3), which deals with the term of office of the members. The membership of the Board, can be legally changed in view of the provisions of subsections (2) and (3) of section 70 of the Ordinance but there is no limit on the duration of the Board itself. The occasional changes made in its membership by the Government do not affect its legal existence. Subsection (3) of section 70 of the Ordinance empowers the Provincial Government to determine the term of each individual member at the time of his appointment. Under subsection (4) a member on the expiry of the term of his office is eligible for re-appointment for another term or for such shorter term as the Government may determine. These powers are not available to the Government to fix the term of the Board itself. There is no doubt that in the notification, dated 14-10-1972 it is stated that the Governor of Punjab is pleased to constitute the Punjab Road Transport Board for a period of two years and the notification also contains the names of the members and Chairman of the Board. But the period of two years fixed by the notification only relates to the term of office of the members and has no relation to the Board itself, which is a permanent statutory body as explained above. Similarly subsequent notification issued from time to time to extend the terms of the Board or to reconstitute it for a specified period are to be construed to have been issued by the Provincial Government under subsections (2) and (3) of section 70 of the Ordinance without affecting the legal existence of the Board.
16. It may be said that the functions of the Board to operate road transport service are continuously being performed even after the dissolution of the Board as the same have been entrusted to the Punjab Urban Transport Corporation Limited which was incorporated in 1977 under the Companies Act, 1913. It was initially placed under the control of the Federal Government but subsequently it was transferred to the Provincial Government. According to the provisions of section 70 (1) of the Ordinance, the Provincial Government may establish a Board for the purpose of operating road transport services in the Province and the Board so established shall be a body corporate having perpetual succession and a common seal. Can a Corporation or Company incorporated under the Companies Act, 1913 be considered as a substitute of the Board referred to in subsection (1) of section 70 or can it be treated as succession-in-interest of the Board. The operation of the road transport services in the Federal Capital Islamabad could perhaps be possible through a Corporation incorporated under the Companies Act but in view of the clear provisions of subsection (1) of section 70, no such Corporation can operate road transport services in the Province as it is only the Road Transport Board, which has been empowered under the statute to perform that function. It may also be mentioned here that it may not be legally permissible for the Provincial Government to consult the Corporation in matters relating to the co-ordination of road and rail transport and in fixation of fares and freights under Chapter IV of the Ordinance in view of the provisions of subsection (9) of section 70 of the Ordinance which recognize the Punjab Road Transport Board only as the consultant body. In the absence of the Punjab Road Transport Board, it is not legally possible for the Government of any other body to operate road transport in the Province on any route it may think fit. The provisions of section 71 of the Ordinance which enable the Punjab Road Transport Board to operate motor transport on any route it may think fit and exclude the jurisdiction of the Provincial Transport Authority and the Regional Transport Authority in relation to that transport and further require these Authorities to make offer first to the Board to operate its service on new routes or routes wholly lying within an urban area to be notified in that behalf by the Government further fortify the view that the Punjab Road Transport Board is a permanent statutory body.
17. After having considered the various provisions of the law pertaining to the Road Transport Board, we may now examine the true meaning of the phrase "perpetual succession" used in relation to the Punjab Road Transport Board in section 70 (1) of the Ordinance. It has been noticed that the establishment of the Road Transport Corporation and fixation of the term of office of its members are separate matters and the confusion created in the various notifications issued by the Government mixing up the two matters, should not detract from the true legal position. The Road Transport Board and the Road Transport Corporation are each other's successors-in-interest as is evident from the specific provisions of the various Ordinances and Acts made from time to time. The Punjab Road Transport Board, which came into being on 14-10-1972 was the successor-in-interest of the Road Transport Corporation by virtue of section 5 of the West Pakistan Motor Vehicles (Punjab Amendment) Act, 1973. It is evident that the statutory bodies established one after the other under section 43-A(1) of the Motor Vehicles Act, 1939 and section 70 (1) of the Ordinance are permanent bodies. There is no limit in point of time to the existence of these bodies. The statement in Monogram 83 in American Jurisprudence, Volume 13 page 226 relied upon by learned counsel for the respondent is, therefore, inapplicable in the present case. The phrase "perpetual succession" in the case of statutory body mentioned in section 70 (1) of the Ordinance has to be given its ordinary meanings as given in Black Law Dictionary i.e. "never ceasing; continuous; enduring; and lasting". Learned counsel for the respondents' contention that by removing the entire members or by refusing to appoint new members or to extend the term of the office of existing members, the Punjab Road Transport Board would cease to exist, cannot be accepted as the Board is the creation of the statute and can be abolished or dissolved only if there is any provision in the statute in that behalf. The Board established under section 70(1) of the Ordinance can be styled as Corporation aggregate, but as stated in paragraph 1394 of Halsbury's Laws of England Volume 9 (Fourth Edition) at page 813, a corporation is not extinguished or dissolved where it is unable by reason of the reduction of the number of its members to do what is necessary for the continuance of its existence, or for carrying out the objects for which it was created. In such a case, the corporation would only be suspended, but otherwise it would continue to exist. Thus by superseding the notification whereby the Chairman and members of the Punjab Road Transport Board were appointed and thereafter refusing to appoint new members and Chairman, the legal existence of the Board would remain unaffected. Subsections (2) to (10) of section 70 of the Ordinance ensure the continuity of the Board.
18. The next question which needs examination is whether the Governor of the Punjab could legally put an end to the Board by invoking the provisions of section 20 of W.P. Act, VI of 1956 and that no amendment in the Ordinance for dissolving the Board was necessary.' Section 20 of W.P. Act VI of 1956 runs as under:-
"Where by any Punjab Act, a power to issue notifications, orders rules, scheme, form or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued."
For the application of section 20, it is necessary to show that there must be a provision in law which should empower the issuance of notifications, orders, rules, scheme, etc. The Punjab Road Transport Board is successor-in-interest of the Road Transport Corporation which in turn was successor-in-interest of the Road Transport Board established under section 43-A(1) of the Motor Vehicles Act, 1939 in the Punjab, the first Road Transport Board was established under notification No.5401-E&T-51/49908, dated the 15th August, 1951. There was nothing in subsection (1) of section 43-A of the Motor Vehicles Act, 1939 empowering the Governor to establish Road Transport Board by issuing notification. In order to remove this lacuna, a provision was made in Rule 3 of the Punjab Road Transport Board Rules, 1952 that the Road Transport Board could be established through a notification and further that the notification issued on 15-8-1951 shall be deemed to have been issued under Rule 3. Subsequently with a view to providing further legal cover to the Road Transport Board established through notification on 15-8-1951 a specific provision was made in section 3 of the Motor Vehicles (Amendment) Act, 1953 (Act XIX of 1953) that the Road Transport Board established before the commencement of the Act shall be deemed to have been established under subsection (1) of section 43-A of the Motor Vehicles Act, 1939. Like section 43-A (1), in section 70(1) of the Ordinance, there is no specific provision which empowers the Provincial Government to establish Road Transport Board by issuing notification. In the absence of such provision, it is open to question if the Punjab Road Transport Board can be dissolved by issuing notification under section 20 of W.P. Act VI of 1956. Through the impugned notification issued under section 20 of W.P. Act VI of 1956, the Governor of the Punjab has superseded notification, dated 16-7-1975 by which the Chairman and the members of the Board were notified. The effect of suprsession of the earlier notification is that the Chairman and members have ceased to hold office but the Board itself remains intact. The statement in the notification that the Governor of the Punjab is pleased to dissolve the Punjab Road Transport Board, is to be construed in relation to the Chairman and the members of the Board and not the Board itself. In this connection reference may be made to a decision from foreign jurisdiction in Gurdit Singh Aulakh v. State of Punjab AIR 1970 P & H 491. Noting the distinction between the words "dissolution" and word "aboltion", it was observed that whereas the word 'dissolution' relates to the personnel of the incumbent of an office or Institution, the word 'abolition pertains to the very existence of the post or the Institution itself. The impugned notification has not affected the existence' of the Punjab Road Transport Board which is a statutory body and must remain in existence to enable the Provincial Government to operate motor transport in the Province without being affected by the jurisdiction of the Provincial Transport Authority and the Regional Transport Authority. The abolition of the Punjab Road Transport Board without bringing about suitable amendments in the Ordinance is inconceivable.
19. One of the essential requirements for the application of the provisions of section 20 of W.P. Act VI of 1965 is that it must be specified that the authority which exercised the power under section 20 had acted in accordance with law while issuing notification or making order sought to be rescinded or modified because section 20 only embodies a rule of construction and does not itself confer any power. The Supreme Court of India in Gopi Chand v. Dehli Administration AIR 1959 SC 609, while examining the application of the provisions of section 19 of the Punjab General Clauses Act (similar to section 21 of the General Clauses Act, 1897 and section 20 of W.P. Act VI of 1956), observed that section 19 embodies a rule of construction, the nature and extend of application of which must inevitably be governed by the relevant provision of the statute which confers the power to issue the notification. The power to cancel the notification can be easily conceded to the competent authority and so also the power to modify or vary the notification can be likewise conceded, but the said power must inevitably be exercised within the limits prescribed by the provisions conferring the said power. As section 70 (1) of the Ordinance dealing with the establishment of the Punjab Road Transport Board does not specify as to how the Board is to be established, the provisions of section 20 of W.P. Act VI of 1956 would not be attracted in view of the legal proposition noticed above.
20. It has been contended on behalf of the respondents that in case it be found that the provisions of section 20 of W.P. Act VI of 1956 are not applicable, the power to dissolve the Punjab Road Transport Board is available in section 70 (1) of the Ordinance itself inasmuch as the authority which has power to establish the Board also possesses under the common law power to dissolve it. In support of this reliance has been placed on the following observation in Shahbaz v. Crown P L D 1956 F.C. 46 at page 48:-
"...In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Wherever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments."
The Trustees of the Port of Karachi v. Messrs Malik Muhammad Din & Sons P L D 1962 (W.P.) Kar. 34 and Maqbool Ahmad and others v. The Province of Sind 1979 CLC 668 have also been cited to support the above contention. Some decisions from the foreign jurisdiction such as Durga Prasad v. State of Uttar Pradesh AIR 1952 All. 959, Bar Council of Delhi v, The Bar Council of India AIR 1975 Delhi 200 and Isherdas Sahni & Bros and another v. The Delhi Administration and others AIR 1980 Delhi 147 have also been cited in support of the arguments. It may be noticed that in none of the cases, relied upon by learned counsel for the respondents, the question of dissolution of a statutory body by exercising the common law right came up for consideration. The rule of locus poenitentiae, on which the common law right is based, is also subject to limitations inasmuch as the order to be recalled should not have been acted upon before being recalled and it should not have the effect of destroying vested rights. If there is a presumption against the taking away of a vested right by any fresh legislation, how is it possible to destroy it through an executive action The officers and employees of the Punjab Road Transport Board, who are affected by the impugned notification of 9-5-1985, were governed by statutory rules framed under the Ordinance. They had acquired certain rights under the above rules which could not be taken away by dissolving the Board by means of notification under section 20 of the W.P. Act of 1956. The rule of locus poenitentiae would not be attracted in such a case. Reference in this behalf is made to Shahbaz v. The Crown PLD 1956 F.C. 46 Dr. Mahboob Rabbani v. Government of West Pakistan P L D 1963 (W.P.) Lah. 53, G.L. Battacharya v. The State etc. P L D 1964 S. C. 503, Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd., Chittagong P L D 1970 SC 439, Qazi Sharif Hussain v. Chief Settlement Commissioner 1984 CLC 1420 and Musharaf Ali v. Province of Punjab 1981 PLC (CS) 29. It may be said that the impugned notification has not affected the rights of the employees of the Punjab Road Transport Board as in paragraph 2 of the notification it is provided that all officers and employees of the Board shall be placed in a surplus pool to be maintained by the Government of Punjab for the purpose of payment of pay last drawn by them in the Board, till their adjustment in other organizations considered suitable by Government on such terms and conditions of, service as decided by it, unless it is otherwise decided to dispense with their services, as far as possible in accordance with the terms and conditions admissible to them prior to dissolution of the Board. The very fact that only the right of receiving the pay last drawn by them in the Board has been recognized and other rights available to them under the statutory rules pertaining to the terms and conditions of their service have not been guaranteed, is sufficient to show that the impugned notification has taken away the vested rights of the employees and officers of the Board to a large extent. The impugned notification, therefore, cannot be upheld even under general principles of common law in so far as the dissolution of the Punjab Road Transport Board is concerned.
21. The appellants have also called in question the appointment of Administrator of surplus pool of the employees of the Board and the delegation of powers of the Board and the Governor available in respect of the employees to the Administrator. It has been contended that placing of the employees of the Board in surplus pool in exercise of the plenary powers by the Government after the dissolution of the Board, an argument which weighed with the learned Single Judge, is totally misconceived because as long as the statutory rules pertaining to terms and conditions of their service are not modified by the competent authority, they are entitled to the rights and privileges available to them under the rules.
22. Learned counsel for the respondents has tried to support order NO.TR-II/10-203/84, dated 12-5-1985 whereby all officers and employees of the Punjab Road Transport Board were placed under the operational control of the Managing Director of the Punjab Road Transport Corporation and order, dated 17-7-1985 whereby Mr. Muhammad Afzal Kahut was appointed as Administrator Punjab Road Transport Board Employees Surplus Pool and was authorised to exercise powers as Government PRTB, or Chairman or Managing Director of the Punjab Road Transport Board, as the case may be, as far as practicable and with such modification as may be necessary in accordance with the principles of the rules specified therein by invoking the provisions of Article 129 of the Constitution of the Islamic Republic of Pakistan 1973 which deal with exercise of executive authority of the Province by the Governor. He has placed reliance on the following passage from paragraph 814 of Halsbury's Laws of England, Volume 8 (Fourth Edition):
"Executive functions are incapable of comprehensive definition, for they are merely the residue of functions of Government after legislative and judicial functions have been taken away. They may, however, be said to entail the formulation or application of general policy in relation to particular situations of cases, or the making or execution of individual discretionary decisions. More specifically, they include the execution of law and policy, the maintenance of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision of supervision of such services as education, public health, transport and national insurance."
The following passage from the Constitution of Islamic Republic of Pakistan,1973 by Mr. Muhammad Munir, has also been referred:
"Executive functions are incapable of a comprehensive definition for they are merely the residue of the functions of Government after Legislative and judicial functions have been taken away. They include in addition to the execution of the laws, the maintenance of public order, the management of State property and nationalised industries and services, the direction of foreign policy and supervision of such services as education, public health, transport and State insurance. There are thus many functions which the executive has to perform without their being a law to guide; but wherever a private right is involved, its infringement can only be excused if there be a law authorising it."
23. Learned counsel for the respondents has also relied on two judgments from foreign jurisdiction namely; Moti Lal and others v. The Government of the State of Uttar Pradesh and others AIR (38) 1951 All. 357 and Ram Jawaya Kapur and others v. The State of Punjab AIR 1955 SC 549. In both these cases, the matter for consideration was whether the State Government could carry on business or trade without specific legislation sanctioning such course and it was held that it could do so in exercise of its executive powers which was not confined to carrying out of laws. In the first case, Malik, C.J. observed:-
"....In a written Constitution the executive power must be such power as is given to the Executive or is implied, ancillary or inherent. It must include all powers that may be needed to carry into effect the aims and objects of the Constitution. I do not find it necessary, however, in these cases, to attempt to catalogue the executive powers of the State but it must be more than merely executing the laws."
In the other case B. K. Mukherjea, C.J. explained the scope of the executive authority of Government stating:-
"The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Government policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on a supervision of the general administration of the State."
24. It may be appreciated that Article 129 of the Constitution specifically provides that the executive authority of the Province shall be exercised subject to the Constitution. Article 4 of the Constitution declared that every citizen or every other person in Pakistan is entitled to the protection of law and is to be treated according to law. Evidently, the executive functions which are the residue of the functions of the Government after legislative and judicial functions have been taken away can be performed keeping in view the provisions of Article 4. Thus where the performance of the executive functions violates private right, it must have some legal cover. In Jamal Shah v. Election Commission P L D 1966 SC 1 it was laid down that all persons exercising authority in Pakistan must do so only in accordance with law. In the case of Moti Lal cited by learned counsel for the respondents, it was made clear that the State can manage its own property and carry on such trade or business as was or is not contrary to law. In the other case also it was pointed out that the executive Government can never go against the provisions of the Constitution or of any law. Even in England where certain executive powers are exercised without parliamentary authority which fall within the comprehensive term "Prerogative", it is settled law that if the whole ground of something which can be done by the prerogative is covered by the statute, it is the statute that rules. Where Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be exercised. Attorney-General v. De Kaysar's Royal Hotel Limited 1920 AC 508 is referred to in this behalf. Viewed in the light of these diservations and the provision of Article 4, the two orders passed by the Government on 9--5-1985 and 12-5-1985 cannot be upheld on the ground that these were issued in the performance of executive functions and as such are protected under Article 129 of the Constitution. The terms and conditions of service of the employees and officers of the Punjab Road Transport Board are contained in the Punjab Road Transport Board Service Rules, 1959, and the Punjab Road Transport Board Rules, 1972. These rules have been framed in exercise of the powers available under subsection (10) of section 70 of the Ordinance. Rule 7 of the Punjab Road Transport Board Rules, 1972 deals with appointment of officers and servants of the Board while Rule 13 empowers the Board to frame regulation for determining the qualifications required for recruitment of the servants of the Board and terms and conditions of their employment. There is nothing either in the Ordinance or in the aforementioned rules to empower the Governor to create surplus pool of the employees of the Board and to appoint Administrator of the said pool. The exercise of powers by the Government, the Punjab Road Transport Board and its Chairman, is regulated by statutory provisions which do not admit of further delegation to an Administrator. Delegation of the powers by the Governor to the Administrator was even otherwise bad in law as it amounted to abdication by the Governor.
25. Learned counsel for the respondents has tried to show that the aforementioned impugned orders though issued administratively, can be treated as statutory rules because the authority issuing the orders is competent to make rules under section 70 (10) of the Ordinance. In support of his above contention, he has relied on the Province of West Pakistan v. Din Muhammad and others P L D 1964 SC 21 where it was held that administrative instructions contained in memorandum issued by authority competent to alter or amend rules can be as effective and binding as statutory rules. A careful examination of order, dated 12-5-1985 would show that all officers and employees of the Punjab Road Transport Board were placed in the surplus pool by notification, dated 9-5-1985 under the operational control of the Managing Director Punjab Road Transport Corporation. As noticed earlier, the above rules were framed under subsection (10) of section 70 of the Ordinance which empowers the Government to make rules, not inconsistent with the Ordinance, prescribing the powers and functions of the Board. The direction contained in order, dated 12-5-1985 requiring the employees to perform functions under the operational control of a person other than the Board is not only inconsistent with Rules 7 and 13 of the Punjab Road Transport Board Rules, 1972 but is also contrary to the provisions of subsection (10) of section 70 of the Ordinance. The rule making authority, while exercising powers under subsection (10) of section 70, cannot place the employees of the Board under the control of a person other than the Board unless a provision to this effect is made in the Ordinance itself. The other order made by the Governor, on 17-5-1985 whereby the Administrator Road Transport Employees Surplus Pool was authorised to exercise the powers of the Government, Punjab Road Transport Board, or Chairman or Managing Director of the Punjab Road Transport Board, cannot be considered in the nature of statutory rule because neither the service rules nor the Ordinance contemplate delegation of such authority which otherwise is open to question as being uncontrolled.
26. Learned counsel for the respondents has also submitted that the action taken by the Governor and the Administrator in the present case may be upheld in view of the legal principle laid down in Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property, West Pakistan and others P L D 1971 S C 811. He has referred to the following passage from the judgment:--
"Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court 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. See The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector. It was remarked in this judgment:
'Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."'
27. We have examined the case from all possible angles and have found that initial step taken by respondent No. 1 in this case by issuing notification, dated 9-5-1985 is not legally sustainable. The aforementioned notification has no legal basis as the Punjab Road Transport Board, a statutory body could not be dissolved without amending the Ordinance. It may be appreciated that the dissolution of the Punjab Road Transport Board also involved the transfer of its rights, assets and liabilities. In the past whenever the Road Transport Board or the Road Transport Corporation was replaced by each other, a specific provision was made in the relevant law for transfer of assets and liabilities of the old body. Reference in this behalf may be made to section 5 of the West Pakistan Motor Vehicles (Punjab Amendment) Act, 1973 which provided that the Punjab Road Transport Board shall be successor-in-interest of the Road Transport Corporation and the undertakings, assets and liabilities of the Corporation shall stand transferred to and vested in the Punjab Road Transport Board. It may be said in the impugned notification, dated 9-5-1985 it was provided that all the undertakings and assets of the Board shall vest in the Government and that all debts, liabilities and obligations of the Board shall be enforceable against the Government. Later on by order, dated 12-5-1985, the undertakings and assets of the Board were transferred to the Punjab Urban Transport Corporation who was also made responsible for the debts, liabilities and obligations incurred by the Board. The Punjab Road Transport Board is a statutory corporate body. It cannot be divested of its undertakings and assets otherwise than under statutory authority. It was for that reason that in the past specific legal provision for transfer of assets and liabilities used to be made when one statutory body was replaced by another. Section 20 of W.P. Act VI of 1956,11 which was pressed into service for dissolving the Punjab Road Transport Board certainly did not give authority to divest the Board of its undertakings and assets. Without amending the relevant provisions of the Ordinance the Punjab Road Transport Board could not be dissolved. Similarly subsequent consequential action taken by the respondents also needed proper legal cover. In this view of the matter the rule laid down by the Supreme Court in Lahore Improvement Trust's case is not attracted to the facts of the present case.
28. Learned counsel for the respondents has also drawn our attention to Article 139(2) of the Constitution and has submitted that delegation of authority to the Administrator by the Government in the present cause may be construed as a result of distribution of Government business under the above provisions. We find it difficult to accept the above. argument because for allocation and transaction of its business, the Provincial Government had already framed Rules of Business under which the subject 'Road Transport Board' stands allocated to the Service General Administration Department headed by the Additional Chief Secretary. Without amendment in the above rules, it was not possible for the Government to transfer the subject of Road Transport Board to the Administrator. We have been given to understand that these rules have not been amended so far.
29. We may now take up the case of each appellant and examine the legality of the orders passed by the Administrator in respect of him. Sh. Akbar Hussain and Sanaullah appellants have been retired from service in terms of rule 7(7) of the Punjab Road Transport Board Rules, 1972. It has been rightly pointed out on behalf of the appellants that the power conferred under sub-rule (7) can be exercised only by the appropriate authority. The Administrator appointed by the Governor was not an appropriate authority for the purposes of the above rules. Order, dated 12-9-1985 passed by him is, therefore, without lawful authority. Although no reason has been given in the aforementioned order for retiring the appellants, in the report submitted by the respondents in the writ petitions filed by the appellants it was stated that they had bad reputation of dishonesty for which action under rule 7(7) was taken against him. It is a well-settled proposition of law that when a person is removed from service on the basis of some charge, he must be afforded opportunity of being heard before the order of his removal from service is passed. Reference in this behalf may be made to A.B.M. Habibur Rehman v. The Director of Technical Education, East Pakistan, Dacca and others P L D 1969 Dacca 998 and Muhammad Siddiq Javaid Chaudhry v. Government of Pakistan P L D 1979 S C 393. No opportunity was afforded to the two appellants to explain their position before the impugned orders were passed against them. Thus in addition to the lack of jurisdiction of the Administrator to pass the impugned orders, the orders of retirement passed against the appellants offend against the rule of law laid down in the cases cited above. Learned counsel for the appellants have pointed out that the learned Single Judge has observed in the judgment under appeal that the aforementioned appellants were retired as they had completed twenty-five years of service, which, however, is not correct because Sh. Akbar Hussain appellant had hardly completed seven years of service and Sanaullah appellant had put in only nine years of service when they were retired. It is immaterial whether the appellants had completed twenty-five years service or not when the orders of retirement were passed by the Administrator because the orders of retirement are not sustainable for other reasons noticed above.
30. Syed Munir Gilani has been retired from service in terms of Rule 33.1 of the Punjab Road Transport Board Service Rules, 1959. This rule was amended by the Administrator and the age of superannuation of sixty years provided therein was reduced to fifty-five years. Apart from the reason stated above that the Administrator was not legally competent to amend the rules or pass the impugned order against the appellant, the amendment of rules even if it had been made by a competent authority could not affect the appellant who had acquired a vested right under the old rules to continue to serve till the completion of sixty years of age. The impugned order is also bad as it is discriminatory because some other employees of the Board, who have even crossed the age of sixty have been retained in service.
31. Syed Ghulam Mustafa appellant has been retired from service as Assistant Director, Labour Welfare in terms of rule 33.2 of the Punjab Road Transport Board Service Rules, 1959, on completion of twenty-five years of service while Dr. Fayyaz Ahmed's services have been terminated in terms of conditions of his appointments as he had not completed the probationary period vide order, dated 31-8-1985. These orders have been passed by the Administrator, who, as noticed above, was not legally competent to pass any order in respect of the employees of the Punjab Road Transport Board.
The upshot of the above discussion is that we allow these appeals and set aside order, dated 14-1-1986 passed by the learned Single Judge. Writ Petitions filed by the appellants are accepted and notification No. TR-II/10-203/84, dated 9-5-1985 dissolving the Punjab Road Transport Board issued by the Governor of the Punjab and all subsequent consequential notifications and orders including the orders of retirement of Messrs Akbar Hussain, Sanaullah, Ghulam Mustafa, and Syed Munir Gillani, appellants and the order of termination of services of Dr. Fayyaz Ahmad appellant issued by the Governor of the Punjab and Mr. Muhammad Afzal Kahut, Administrator Surplus Pool of the employees of the Punjab Road Transport Board are declared illegal, without lawful authority and of no legal effect. The appellants are also awarded costs.
A. A.
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