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Petitioner: MUHAMMAD AZAM MALIK VS Respondent: GHULAM MURTAZA BUTTAR
1993 P L C (C
1993 P L C (C.S.) 253
[Lahore High Court]
Before Irshad Hassan Khan, J
MUHAMMAD AZAM MALIK
Versus
GHULAM MURTAZA BUTTAR and 3 others
Writ Petition No. 9915 of 1991, heard on 17th November, 1992.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑Maintainability‑‑‑Constitutional petition could not be thrown away on mere vague and indefinite allegation that petitioner was acting in mala fide manner and was fighting for some one else rather than for himself; such allegations being not substantiated on record.
Dr. Kamal Hussain and 47 others v. Muhammad Sirajul Islam and others PLD 1969 SC .42 and Sycd Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another PLD 1991 Lah.420 rel.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, General‑‑‑Respondent's appointment in BPS‑19, in a statutory Body, on direction of Chief Minister‑‑‑Constitutional petition for issue of writ in the nature of quo warranto against respondent to show cause on what legal authority he was holding his post‑‑‑Jurisdiction‑‑‑Said statutory Authority having adopted Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, same were to be followed by the Authority while making appointments or promotions etc. till such Authority framed its own rules/regulations‑‑‑Respondent's appointment to post in question, being governed by statutory rules, any violation thereof, while making appointment would render such appointment liable to be quashed through issuance of a writ of quo warranto‑‑‑Respondent's appointment being proved to be in violation of the Rules viz. Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, was declared to be without lawful authority and of no legal effect.
Rex v. Supeyer (1916) 1 K.B. 595; (1916) 2 K.B. 595; Blackstone's Commentaries 8th Edition Volume 3. page 262; Hamid Hasan Nomani v. Banwarilal Roy AIR 1947 P.C. 90; Masudul Hassan v. Khadim Hussain PLD 1963 SC 203; National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832 and Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275 ref.
Abdul Haq Kausar and another v. Alim Akhtar Shah and another 1989 CLC 1907; Anwaar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Ali Muhammad v. Muhammad Ramzan 1969 SCMR 46 and Abdul Ghafoor v. Hasan Zaheer PLD 1965 Lah. 27 rel.
(c) Master and servant‑
‑‑‑‑Where terms and conditions of service of an employee of a Corporate body were regulated by instructions issued by the employing body for its own convenience, the rule of master aid servant was applicable.
Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 140 ref.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Writ of quo warranto‑‑‑Where any person was recruited in a statutory body in violation of statutory rules, writ of quo warranto was available.
Maqbool Elahi v. Khan Abdul Rehman Khan PLD 1960 SC 266; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai PLD 1975 SC 244; Henry Farran Daricy v. Reg (1846) 8 ER 520; "Extraordinary Legal Remedies" by Ferris 1926 Edition page 145; Pakistan v. Naseem Ahmad PLD 1961 SC 445; Faiz Ahmad v. The Registrar, Cooperative Societies, West Pakistan, Lahore PLD 1902 SC 315; Managing Committee of Cooperative Model Town Society Ltd. v. Kh. Muhammad iqbal PLD 1963 SC 179, Masudul Hasan v. Khadam Hussain PLD 1963 SC 203, Zainul Abidin v. Multan Central Cooperative Bank Ltd., Multan PLD.1966 SC 445; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 and M.UA. Khan v. Rana M. Sultan PLD 1974. SC 228 rel.
(e) Constitution of Pakistan (1973)‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition for writ of quo warranto‑‑?Maintainability‑‑‑Authority constituted under an Act was performing functions of Provincial Government relating to planning and development and was thus, an agency through which some of the sovereign functions of the State were being performed‑‑‑Responsible Officers of such Authority were, therefore, performing the same duties as were stated to be the functions of the Authority under the Act‑‑‑Where one of its such employees was appointed in violation of statutory rules, petition for quo warranto was maintainable.
(f) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S. 9‑‑‑Statutory Authority has to act and be guided in discharging its functions, by directions of the Government‑‑‑Such directions and guidance have to be in conformity with the relevant statute and its objects‑‑‑ Government, however, could not nullify any of the provisions of the said Act either directly or indirectly in the garb of directions, which tantamounts to usurping the powers vested in the Authority, by Government under S.9, Civil Servants Act, 1974‑‑‑Government could not be permitted to interfere with the functions of Authority by issuing directions regarding appointment of a particular person against a particular post to the exclusion of all other eligible candidates and without following the normal practice‑‑‑Appointment on the instruction of Government by the Authority in violation of statutory rules could not be sustained.
(g) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Punjab Civil Servants Act (VIII of 1974), S.9‑‑‑Constitutional petition for issuance of writ of quo warranto‑‑‑Respondent's appointment in Grade‑18 and, subsequently in Grade‑19, challenged‑‑‑Respondent resigning from Grade‑8 post and subsequently appointed in Grade‑19 post‑‑?Petitioner's prayer that his petition was restricted to the appointment of respondent in Grade‑19, was accepted on the ground that respondent's appointment in Grade‑18, was a transaction past and closed, in that subsequent appointment in Grade‑19 was not by way of promotion but was made independently as an initial appointment.
Abid Hassan Minto for Petitioner.
?Ch. Hamid‑ud‑Din for Respondent No. 1.
?Ali Akbar Qureshi for Respondents Nos. 2 and 3.
?Maqbool Elahi Malik, A.G. for Respondent No. 4.
?Date of hearing: 17th November, 1992.
?JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been moved' by Muhammad Azim Malik, Assistant Director (Procurement and Stores), Water and Sanitation Agency, Faisalabad Development Authority against Ghulam Murtaza Buttar, Director (Administration and Security), Water and Sanitation Agency, Faisalabad Development Authority in which the following reliefs have been prayed for: ‑
(i) the orders of appointment `of respondent No.l in BS‑18 and BS‑19 and his holding of a post in BS‑49 continuously is without lawful authority and is liable to be declared to be of no legal effect; and
(ii) that respondent No.1 be called upon to show on what legal authority he is holding his present office and a writ of quo warranto be issued in that behalf.
2.The petitioner is employed in the Water and Sanitation Agency of Faisalabad Development Authority (hereinafter called the Authority) and is presently holding the post of Assistant Director (Procurement and Stores) in Grade‑17. The Director‑General of the, Authority vide his order dated 11‑6‑1983 appointed respondent No.l, who by his qualification is a degree holder in Commerce, as Senior Accountant on ad hoc basis in NPS‑16 for a period of six months vide Letter bearing Endt. No. Admn/7903‑05/F.D.A‑83. Respondent No.l continued to work as Senior Accountant till 21‑3‑1989 when the Director‑General vide his order dated 21‑3‑1989, in compliance with the directions of the Chief Minister, Punjab, dated 9‑3‑1989 appointed him as Deputy Director (Finance), a post in Basic Scale No.18, in the Urban Development Wing of the Authority. This appointment was challenged by means of Writ Petition No.1840 of 1989 by one Fateh Muhammad, who was an Assistant Director (Finance) in the Authority. While the aforesaid writ petition was pending, in pursuance of another directive of the Chief Minister, respondent No.l was appointed as Director (Procurement and Stores), a post in Basic Scale No.19 by order dated 17‑9‑1989 passed by the Director‑General. The writ petition was, however, disposed of by order dated 30‑3‑1991 as having become infructuous because it was found that in the meantime, respondent No.l has resigned and was no longer holding the disputed position. Subsequent to the disposal of Writ Petition No.1840'of 1989, "Starred Assembly Question No.908" was raised on 12‑6‑1991 in the Punjab Provincial Assembly concerning direct induction of respondent No.l in Grade‑19, which was answered by the concerned Minister, inter alia, to the following effect:
"So far as rules under which prescribed qualification/requirements for direct induction as Director in Grade‑19 is concerned. It is intimated that Faisalabad Development Authority Appointments and Conditions 'of Service Regulations were approved in June, 1990 conveyed by your Letter No.SO(E‑1)HP and EP‑9‑1/88, dated 2‑6‑1990, so the prescribed qualification/requirements for induction as Director in Grade‑19 cannot be applicable in the appointments made prior to approval of this Appointment and Conditions of Service Regulations."
3 Mr. Abid Hasan Minto, learned counsel for the petitioner, argued that the impugned appointment has been made under the directions of the Chief Minister, Punjab, to accommodate respondent No.l a brother‑in‑law of' Mr. Muhammad Afzal Sahi, a Member of Provincial Assembly of the; Islami Jamhuri Ittehad, notwithstanding the fact that under the Punjab Development of Cities Act (No. XIX of 1976) (hereinafter called the Act), the appointing authority is the Faisalabad Development Authority and the Chief Minister in the purported exercise of his power under section 16 of the Act is not competent to interfere in the matter in any manner whatsoever. It is further submitted that no advertisement was made before making the direct appointment of respondent No.l firstly, in BS‑18 and later in BS‑19. The Authority in its meeting held on 24‑6‑1978 had decided to adopt the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, for making appointments in the Authority. The impugned appointment being violative of the said rules, is wholly without lawful authority.
4. Ch. Hamid‑ud‑Din, learned counsel for respondent No.l placed reliance on Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), to contend that the writ petition having been filed after a lapse of two years from the date of impugned appointment, the same was liable to be declined. The learned counsel submitted that a writ ‑ of quo warranto would not lie against respondent No.l because the petitioner is acting, a mala fide manner and is fighting for somebody else rather than for himself. In the precedent case, a challenge was made to the offices of the elected members of the Provincial Bar Council inter alia on the ground that the entire election was void as it was convened and conducted by Mr. Jan‑e?-Alam, Senior Government Pleader, Dacca, who illegally assumed jurisdiction as ex officio Chairman of the Council, which office he neither held nor was qualified to hold. The Supreme Court held that the unauthorised presence of Mr. Jan-e‑Alam as the Chairman of the Council in the meetings held in connection with the election did not affect the validity of the decision taken in the meetings in view of the protective provision of section 20 of the Legal Practitioners and Bar Councils Act (III of 1965). As to the scope of quo warranto, it was held: ‑
"Under Article 98(2)(b) (which corresponds to Article 199 (1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, (1973), any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority. On that account it cannot be doubted that Mr. Siraj‑ul‑Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach. In the present case, considering all the circumstances, I cannot escape the feeling that Mr. Siraj‑ul‑Islam is not entirely playing his own game, for his altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition, which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members of the Council was duly notified on the 20th December, 1966. They have been in office discharging their duties since the 1st of January, 1967. The writ petition in the High Court was filed 9 months a later on the 12th of September, 1967. The alleged disqualification of the appellants and the two respondents, which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circumstances, I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court. Mr. Khundker, the learned counsel for the respondents has also contended that since the High Court has exercised its discretion in favour of the respondents this Court should stay its hands and not interfere with that discretion. This Court does not and will not interfere where the High Court has exercised its discretion on sound judicial principles, but it will certainly intervene where it finds that the discretion has been exercised in a manner which diverts the law into wrong channels by the formation of conclusions which are unsustainable in law."
5. The writ in Dr. Kamal Hussain's case was not rejected on the ground of laches simpliciter but because the Court found the conduct of the petitioner therein mala fide. Here the vague allegation that the petitioner is acting in a mala fide' 'manner and is fighting for somebody else rather than for himself is not substantiated on record and' merely on the basis of these vague and indefinite allegations, the writ cannot be thrown away. As regards laches, the impugned appointment was made in September, 1989, while a challenge has already been made to the previous appointment of respondent No.l in Grade‑18 by another person. It was not necessary for the petitioner to file another petition when Writ Petition No.1840 of 1989 having bearing on the controversy raised in this petition was disposed of on 30‑3‑1991 as having become infructuous. Refer Baij Nath Singh v. The State (AIR 1965 Allahabad 151), wherein it was observed that in a case of quo warranto, the occupation of the office illegally gives rise to a cause of action to others daily and persistently and no question of delay arises. In Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another (PLD 1991 Lah. 420), it was held that laches would not generally apply in cases of quo warranto but the Court can ignore the application of this principle if the attendant circumstances are such which militate against the bona fides of the petitioner. The same principle was laid down in Dr. Kamal Hussain (supra), which does not stand in the way of the petitioner. The delay in filing the writ petition has been satisfactorily explained.
6. In early times, the writ of quo warranto was in the nature of a writ of right for the King against any subject, who claimed or usurped any office, franchise, or liberty to inquiry by what authority he supported his claim in order to determine the right. Refer Rex v. Supeyer ((1916) 1 K.B. 595). This was affirmed in ((1916) 2 K.B. 595). Also refer Blackstone's Commentaries 8th Edition, Volume 3 page 262. Later the writ of quo warranto fell into disuse and led to the substitution of proceedings by way of information in the nature of quo warranto. Such information originally related to the Court by Attorney? General and later by the King's coronor uptil state of 9'Ann. c.20 the position was altered and disputes between party and party without the intervention of the prerogative were entertained. The practice later grew to receive information from private relator against a. usurper of a public office and to issue writ of quo warranto if usurpation was proved. Under section 9 of the Administration of Justice (Miscellaneous) Provisions Act, 1938, the practice of laying information in the nature of quo warranto has been abolished in England, and substituted by injunction restraining any person from acting in an office in which he is not entitled to act. Clause (1)(b)(ii) of Article 199 of the Constitution of the Islamic Republic of Pakistan is in the nature of prerogative writ, of quo warranto. There are apparent difference as compared to clauses 1(a)(i) and (ii) and 1(b)(i) and (ii) and 1(c), namely; whereas, under clause 1(a)(i) and (ii) the application must be by "an aggrieved"; under clause (1)(c), the application must be by "aggrieved person"; and whereas under clause 1(b)(ii), the application can be by "any person".. Whose acts or proceedings are called in question, must be a person performing functions in question with the affairs of the Federation, a Province or a Local Authority. Under clause (1)(b)(ii), respondent must be a person holding or purporting to hold a public office. There is no specific mention of the nature of its functions. In Hamid Hasan Nomani v. Banwarilal Roy AIR 1947 P.C. 90, it was held that "an information in the nature of quo warranto is the modern procedure replacing the obsolete High Prerogative writ of quo warranto. It is used to try the civil right to a public office. In Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203), it was held with reference to the monograph on Crown Proceedings in Volume 11 of Halsbury's Law of England," the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to inquire by what authority he supported his claim in order that the right to the office may be determined". It was also observed that issue of writ of quo warranto is discretionary with the Court and that it was necessary for the issue of writ that the office should be one created by the State, by charter or by statute and that the duty should be of a public nature.
7. Ch. Hamid‑ud‑Din, learned counsel for respondent No. 1 argued that appointment of respondent No. 1 as Director has been made by the competent Authority under section 9 of the Act and, therefore, a writ of quo warranto is not competent to probe further into the basis or reasons of appointment which have weighed with such Authority. He further argued that the impugned post of the Director was not a "public office" and in the absence of any statutory rules, the appointment of respondent No. 1 having been made on the principle of `master and servant' by the competent Authority, the writ of quo warranto was not available.
8. Mr. Maqbool Elahi Malik, learned Advocate‑General also supported Ch. Hamid‑ud‑Din. He respectfully submitted that the Authority is a statutory body created under the Act. Section 9 of the Act empowers the Authority to appoint such Officers, advisors, experts, consultants and employees as it considers necessary for the efficient performance of its functions and such terms and conditions, as it may deem fit. He further submitted that under section 8 of the Act, the Authority is competent to delegate any of its powers, duties or functions under the Act to the Director‑General or other authorities specified therein subject to such conditions as it may think fit. In the' instant case, the learned Advocate‑General submitted that this power has been delegated by the‑ Authority to the Director‑General, who was, therefore, competent to appoint respondent No. 1 against the impugned post as Director Finance and the same is not open to challenge by means of a writ of quo warranto. He further submitted that section 43 of the Act; subject to other provisions thereof, empowers the Government to make rules for carrying into effect the purpose of the Act. Section 44 also empowers the Authority to make regulations, as may be necessary to carry out the purpose of the Act and subject to the provisions and the rules made thereunder. In the instant case, however, the Authority had not framed its rules/regulations in, relation to appointment and conditions of service of the employees when the impugned appointment was made and, therefore, respondent No. 1 cannot be regarded as holder of a "public office" when his appointment was made and the relationship between the Authority and its employee at that time was that of `master and' servant'.
8‑A. The question, which needs consideration in the light of respective submissions of learned counsel for the parties is whether at the time of impugned appointment, respondent No. 1 was governed by the rule of `master and servant' in the absence of any rule/regulation made by the Authority under the Act. The answer is in the negative. So far as the power to make regulations is concerned, that has been vested in the Authority itself under section 44 of the Act and it is for the Authority to decide whether to frame or adopt the regulations or rules of the Government relating to recruitment of its employees. In the instant case, the Authority in its meeting held on 19‑9‑1977, decided that rules may be prepared and till such time, the rules are framed/approved, the Government's rules should be followed for conducting the business of the Authority and other purposes. Thus visualised, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were to be followed by the Authority while making the appointments, or promotions etc. till the Authority framed its own rules/Regulations. Here the Authority framed the Regulations called Faisalabad, Development Authority (Appointment and Conditions of Service) Regulations, 1990, under which initial appointments of the posts of Grades‑16 and above were to be made on the basis of examination/test or interview by the appropriate Committee after advertisement in the newspaper. The impugned appointment of respondent No. 1 was made on 17‑9‑1989 and, therefore, its validity cannot be tested on the touchstone of the said Regulations but is to be examined in terms of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which were duly adopted by the Authority and had the force of statutory rules. Any violation of the said rules is, therefore, open to challenge by means of the Constitutional petition. Refer National Bank of Pakistan v. Manzoorul Hasan (1989 SCMR 832), wherein it was held that the bye‑laws framed in respect of service rules of the employees in pursuance of section 32 of the National Bank of Pakistan Ordinance, 1949, were to be treated as statutory rules. Also see Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275). In the precedent case, the Evacuee Trust Property Board by means of a proper resolution adopted the Efficiency and Discipline Rules and, therefore, violation thereof at the instance of an aggrieved employee of a corporate body was held actionable. A similar view was taken in the unreported judgment of the Supreme Court in C.P.S.L.A. No. 645 of 1974, titled the Chairman, Evacuee " Trust Property Board, Lahore v. Noor Elahi and C.P.S.LA. No. 646 titled the Chairman, Evacuee Trust Property Board, Lahore v. Muhammad Ramzan. A passage from the judgment in C.P.S.LA. No. 645 of 1974 has also been quoted in C.P.S.LA. No. 646 of 1974, which reads thus: ‑
"It appears from the order passed by the learned Chief Justice of the High Court on the two Constitutional petitions that the Board at its 6th meeting held in May 1969, passed the following resolution: ‑‑
`Agreed. Central Government Rules would apply to the Board's employees for all intents and purposes.'
Under paragraph 43 of the Scheme the Board is authorised to make rules to carry out the purposes of the scheme framed under section 16‑A(1) of the Displaced Persons (Land Settlement) Act, 1958. Paragraph 16 of the Scheme provides that no employee of the Board shall be dismissed or otherwise punished except in accordance with the…
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