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Petitioner: MUHAMMAD AFZAL VS Respondent: GOVERNMENT OF BALOCHISTAN
1995 P L C (C
1995 P L C (C.S.) 567
[Quetta High Court]
Before Iftikhar Muhammad Chaudhry and Mir Muhammad Nawaz Marri, JJ
MUHAMMAD AFZAL and another
Versus
GOVERNMENT OF BALOCHISTAN through Secretary, Services and General Administration Department, Quetta and 4 others
Constitutional Petition No. 310 of 1991, decided on 26th September, 1994.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199(2)(b)(ii)‑‑‑Order in the nature of quo warranto‑‑‑Locus standi to seek‑‑‑Writ in the nature of quo warranto can be maintained on behalf of a person who is not aggrieved person‑‑‑Object of such type of Constitutional petition is to confer authority on any person, and subject to the Constitution to enquire from any person/persons holding public office to show his/their authority of law, on which he/they claim to hold such office.
Kamal Hussain v. Sirajul Hassan PLD 1969 SC 42; Masoodul Hassan v. Khadim Hussain and another PLD 1963 SC 203; M.UA. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Saifuddin v. Chamber of Commerce, Balochistan and others PLD 1982 Quetta 136; Syed Badruddin and 10 others v. Government of N.W.F.P. PLD 1994 SC 345; Muhammad Amir and others v. Abdul Haseeb and others PLD 1994 SC 534 and Ali Hussain Bukhari and 39 others v. AJK Government through Chief Secretary and 2 others 1992 PLC (C.S.) 289 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Balochistan Service Tribunals Act (V of 1974), S. 4‑‑?Army Officer's induction in Provincial Civil Service made by Provincial Government contrary to relevant rules challenged by petitioners (civil servants) who were not claiming seniority or promotion over the appointee (Army Officer)‑‑‑Jurisdiction of High Court to issue writ in the nature of quo warranto‑‑‑Bar of jurisdiction‑‑‑Extent‑‑‑Provision of S. 4, Balochistan Service Tribunals Act, 1974, postulates that any Provincial Civil Servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service can approach Service Tribunal for redress of his grievance‑‑‑Questioning appointment/induction of any other person, thus, would not fall within jurisdiction of Service Tribunal‑‑‑Appointment/Induction in the Provincial Civil Service of such other person was, therefore, not challengeable in terms of Art.212 of the Constitution and S. 4, Balochistan Service Tribunals Act, 1974‑‑?Person who had information of illegal appointment would have no other remedy except filing Constitutional petition in the nature of quo warranto under Art. 199 of the Constitution, and relief as prayed for could not be refused on ground of bar of jurisdiction under Art. 212 of the Constitution.
I.M. Sherwani and others. v. Government of Pakistan through Secretary Finance Division and others 1991 SCMR 1041 ref.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 113‑‑‑Civil Procedure Code (V of 1908), O.VI, R. 17‑‑‑Admission of averments in Constitutional petition by officials of the Government in their written reply‑‑‑Counsel of Government representing such officials seeking amendment of such written reply for the purpose of denying admissions as contained in their written reply to Constitutional petition without submitting affidavits of officials concerned‑‑‑Court drawing inference from conduct of such officials (respondents) that in view of the facts and circumstances of case, important admissions were made by officials concerned intentionally in order to assist the Court properly relating to the Law, Rules, Regulations, Policies etc. prevailing at the relevant time‑‑‑In absence of evidence which could have been furnished by filing affidavit with amendment application, acceptance of such application would change the complexion of proceedings and important admissions made by officials in support of Constitutional petition would be converted into denial‑‑‑Application for amendment of written reply of officials was not allowed in circumstances.
PLD 1970 SC 1 ref.
(d) Administrative decision‑‑‑
‑‑‑‑ Policies and instructions issued from time to time by the Government could be equated with statutory Rules for they possess generality and cover large number of cases on the subject.
Faizullah Khan v. Government of Pakistan PLD 1974 SC 291 rel.
PLD 1971 SC 846 and M.U.A. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228 ref.
(e) Balochistan Civil Service (Executive Branch) Rules, 1984‑‑‑
‑‑‑‑Rr. 5 & 12‑‑‑Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, Appendix A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Government of Balochistan Notification No. SOR(2)92/S&GAD‑79, dated 27th June, 1982 for induction of Armed Forces Personnel in civil posts under Provincial Government and Autonomous Bodies whereby it constituted Selection Board for selection of such personnel‑‑‑Induction of Armed Forces personnel holding the rank of Colonel into civil service on regular basis in Grade 19‑‑‑Validity‑‑‑Government of Balochistan was authorised to fill up 10 per cent. of the vacancies open for initial recruitment, according to which, Lt.‑Colonels/equivalent or above, were not eligible to be inducted into civil service on regular basis‑‑‑In Provincial Civil Service, no such officer could be appointed in Grade‑19, a post which has to be filled through promotion under Balochistan Civil Service (Executive Branch) Rules, 1984‑‑‑Induction of person holding rank of Colonel in Grade‑19 in the Provincial Civil Service was thus, coram non judice in violation of Rules and Policy‑‑‑Initial recruitment of Executive Branch Officers is to be made in Grade‑17 and Captain/equivalent rank are eligible to be inducted therein, up to the level of their quota which is 10 per cent‑‑‑High posts in civil service are to be filled through promotion‑‑?Relaxation of R. 5, Balochistan Civil Service (Executive Branch) Rules; 1984 for inducting officer concerned in Grade‑19 was of no consequence for recruitment of initial appointment in Grade‑17 is to be made‑‑‑Appointment of person holding rank of Colonel while he was still in active service in Grade‑19 of Provincial Civil Service was thus, without lawful authority and jurisdiction.
(f) Balochistan Civil Service (Executive Branch) Rules, 1984‑‑‑
‑‑‑‑8. 5‑‑‑West Pakistan Delegation of Powers (Relaxation of Age) Rules, 1961; R. 2‑‑‑Appointment in relaxation of Rules‑‑‑Validity‑‑‑Provincial Government was authorised to grant relaxation of age but reasons therefore must be recorded‑‑‑Rules incorporated in Balochistan Civil Service (Executive Branch) Rules, 1984 relating to method of recruitment as laid down in R. 5 of the Rules could not have been relaxed to induct a person into the higher hierarchy of Provincial Service for R. 5 deals with initial appointment in Grade‑17‑‑‑Induction of a person in Grade‑19 was not warranted in circumstances.
Muhammad Aslam Chishti for Petitioners.
Raja Rab Nawaz, D.A.G. and Ch. Ejaz Yousuf, Addl. A.G. for Respondents Nos. 1 to 4.
Basharatullah for Respondent No. 5.
Date of hearing: 23rd August, 1994.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑In this Constitutional petition, following relief has been prayed for:‑‑
"PRAYER
It is prayed that:
(a) Learned Court may be pleased to declare that impugned Notification dated 26‑10‑1991 has been issued without lawful authority and the same is of no legal effect;
(b) Learned Court may be pleased to issue writ of quo warranto calling upon respondent No. 5 to show by what authority he holds the appointment of Grade‑19 in Balochistan Civil service (Executive Branch)."
It is the case of petitioners that respondent No. 5 Col. Muhammad Hashim Baloch, be called upon to show as under what authority, he holds the appointment of Grade‑19 in Balochistan Civil Services (Executive Branch) as the Notification, referred to in the prayer clause has beer; issued without lawful authority. It would be appropriate to reproduce hereinbelow the Notification for sake of convenience:‑
"NOTIFICATION.
No. S‑II‑19‑59/89‑S&GAD.‑‑‑Colonel Muhammad Hashim Baloch, an Army Officer of Government of Pakistan who is on deputation to Government of Balochistan and is posted as Commissioner, Kalat Division, is hereby inducted, as a special case in the Balochistan Civil Services (Executive Branch) in B‑19 and is placed at the top of seniority list of BPS‑19 Officers of the service with immediate effect.
(2) The method of recruitment as laid down in rule 5 of the Balochistan Civil Service (EB) Rules, 1984, is hereby relaxed under the provisions of rule 12 of the Service Rules ibid for the purpose of induction of Colonel Muhammad Hashim Baloch.
(3) The induction of Colonel Muhammad Hashim Baloch, will be personal to him and cannot be quoted as precedent in future."
Precisely noting the facts of the case are like this. The services of respondent No. 5 Colonel Muhammad Hashim Baloch were acquired by the Provincial Government of Balochistan on deputation basis from the Ministry of Defence during the period when he was in active service of the Pakistan Army. As such, he joined service in Executive Branch of the Provincial Government in BPS‑19 with effect from 1st April, 1989, initially for a period of three years vide letter No. F.2/40/D‑24(C‑IV)/88, issued by Govt. of Pakistan, Ministry of Defence, Rawalpindi, dated 1st March, 1989. Subsequently on his promotion to the rank of Colonel, a fresh order of deputation of his service to the Provincial Government dated 1st November, 1990, was issued by the Government of Pakistan, Ministry of Defence, for another period of three years. It was also mentioned therein that on deputation, the officer will be governed by the terms and conditions as laid down in JSI‑4/85 as amended by JSI‑12/85. During the period of his deputation on 4th December, 1990, the then Chief Minister of Balochistan (Mir Taj Muhammad Khan Jamali) wrote a D.O. letter to the Adviser to Prime Minister for Defence, Government of Pakistan, Ministry of Defence, Rawalpindi. Contents whereof, are reproduced hereinbelow:‑
"Subject:‑ Absorption on permanent basis of Col. M. Hashim into Balochistan Civil Service.
Dear Sir,
This is to request on behalf of Balochistan Government that the services of Col. M. Hashim be placed from the Pakistan Army at the disposal of Government of Balochistan by inducting him in the District Management Group.
The abovementioned officer has already been on secondment with the Provincial Government since March, 1989 and his conduct of service has been excellent.
In the interest of better and clean administrative set up and public service it is requested that Ministry of Defence may very kindly please accede to this request.
With best wishes:"
In response to the above correspondence, the Advisor to Prime Minister for Defence, vide letter dated 6th January, 1991 informed the Provincial Chief Minister that the induction of Aimed Forces Officers in the rank of Colonel is not allowed under the Rules, (underlining is ours), they however, can be re?employed on retirement/release from the defence service. It was further pointed out therein that the Provincial Government can induct Colonel Muhammad Hashim in the Provincial Civil Service, if they so deemed fit, subject to his release from the Army. 'Contents of this D.O. letter are also reproduced herein below :‑
"Kindly refer to your D.O. No.PS‑CM/1990.202‑3/1(25)/1776, dated 4th December, 1990 seeking inducting of Colonel Muhammad Hashim in the District Management Group and placement of his services at the disposal of the Government of Balochistan.
(2) The induction of Armed Forces officers in the rank of Colonel/equivalent in the Civil Service is not allowed under the Rules. They can, however, be re‑employed on retirement/release from the Defence Services.
(3) The Government of Balochistan could induct Colonel Hashim in the Provincial Civil Service, if they so deem fit subject to his release from the Army. We could request General Headquarters for their no objection to the release of the officer on hearing from you to this` effect."
Later on vide D.O. letter No. PS‑CM/91, dated 26th December, 1991 the Chief Minister (Mir Taj Muhammad Jamali) informed the Federal Minister for Defence that the officer (respondent No.5) has already been absorbed in the Balochistan Civil Service (Executive Branch) as such, he shall be highly obliged, if necessary `No objection is obtained from the GHQ, at the earliest. Upon this letter, the Ministry of Defence retired the respondent No.5. with effect from 6th January, 1992 and Provincial Government in this behalf, was duly intimated vide letter No. F.2/40/D‑24(C‑12)/88, dated 26th January, 1992. As such instant Constitutional petition has been filed by the petitioners, who themselves are in the Balochistan Civil Service (Executive Branch).
The petitioners have raised two‑fold question in this Constitutional Petition:‑
(i) The induction of respondent No.5 (Colonel Muhammad Hashim) has been made by the Provincial Government illegally/contrary to the provisions of Balochistan Civil Services (EB) Rules, 1984, and the Policy of Government of Pakistan, regarding induction/re?employment of officers of Armed Forces of Pakistan in Civil Services, in pursuance whereof, Government of Balochistan also framed its own policy under the same subject vide No. SOR(11)92/S&GAD‑79, dated 27th June, 1992.
(ii) The respondent No.5 had no authority to hold the post of Grade‑19 in Balochistan Civil Services (Executive Branch) under the relevant Rules, as such, his services are liable to be dispensed with.
Mr. Muhammad Aslam Chishti, learned counsel for petitioners contended that the Provincial Government of Balochistan while filing para?wise comments dated 20th January, 1992 to the petition, duly supported by affidavits sworn by the Chief Secretary and Secretary, Services and General Administration Department, respectively had confessed the judgment by admitting the facts mentioned in the petition. Therefore, the petitioners are entitled for the relief, as has been prayed for.
Mr. Ejaz Yousaf Chaudhary, learned Additional Advocate‑General, however opposed the petition and stated that CAI. No.303/94, dated ‑ 19th April, 1994 has been filed by him on behalf of the Chief Secretary and Secretary, S&GAD, i.e. respondents Nos. 1 and 2 seeking necessary amendment in the counter‑affidavit. According to him although the application is being contested by the petitioners, as they filed objections to it, but if it is allowed there would be no admission of facts on behalf of official respondents.
It may be noted that the application has not been supported with affidavit of the concerned officers who filed counter‑affidavit on behalf of the Government, referred to hereinabove. However this question will be taken up later on, at the appropriate stage, because the Additional Advocate‑General as well as the Deputy Attorney‑General, Raja Rab Nawaz, on behalf of Provincial and Federal Governments (official respondents) objected to the maintainability of the petition, claiming its dismissal in view of the bar created by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
Mr. Basharatullah, learned Counsel for respondent No.5 opposed the petition both on the question of jurisdiction as well as on merits, reiterating the same objection which has been raised by the learned counsel for official respondents. Additionally he emphasised that the object of filing the petition in the nature of quo warranto is indirectly to claim seniority in service by the petitioners over the respondent No. 5, as it is reflected from the contents of paras. 7 and 11 of the petition wherein, it has been noted that on account of induction of respondent No.5 in Balochistan Civil Services (Executive Branch), he has been placed on the top of seniority list of BPS‑19. As such, according to Mr. Basharatullah, Advocate, the grievance of petitioner appears to be that they have been shown junior to respondent No. 5. Similarly according to learned counsel, the factum of filing representations by the petitioners furnishes another evidence to support his argument, because in para. 9 of the representations, in categorical terms, it was stated that assigning the seniority to Colonel Muhammad Hashim in BPS‑19 had adversely affected the officers in B‑17 to B‑19 as well as to the petitioners themselves. Thus, the petitioners have got alternate remedy before the Balochistan Service Tribunal, against the impugned Notification and the petition on this score deserves dismissal.
Mr. Muhammad Aslam Chishti, Advocate contended that under Article 199(2)(b)(ii) of the Constitution, this Court is competent to enquire from respondent No. 5, to show that under what authority, he holds the post in BPS‑19 in Balochistan Civil Services (Executive Branch), and to invoke the jurisdiction, it is not necessary for the petitioners to prove their locus standi. Even such petition can be maintained on behalf of any person, because the induction of respondent No. 5 is contrary to the relevant rules. According to learned Counsel after the induction of respondent No. 5, neither the Provincial Government had issued a seniority list showing the petitioners junior to him nor they are aware if on the basis of impugned Notification their seniority has been affected therefore, just to show their concern for maintaining the petition, certain averments in this behalf have been made. He also emphasised that even in the representations submitted to the Government, before invoking the Constitutional jurisdiction, prayer was made to withdraw the impugned Notification and in para. 9 thereof, it was not exclusively mentioned that petitioners shall adversely be affected, rather it was pointed out that the officers from Grade‑17 to 19 would suffer due to the induction of respondent No. 5. In this behalf Mr. Aslam Chishti, Advocate, placed reliance on 1992 PLC (C.S.) 289.
Raja Rab Nawaz, Deputy Attorney‑General, referred to PLD 1994 SC 345 and‑534, whereas Mr. Basharatullah, Advocate referred to, PLD 1969SC 42 to substantiate the contentions putforth by them.
Under Article 199(2)(b)(ii) of the Constitution, a writ in the nature of quo warranto even can be maintained on behalf of a person, who is not aggrieved person because the object of this type of Constitutional petition is to confer authority on any person, and subject to the Constitution to enquire from a person or persons holding the public office to show his/their authority of law, on which, he/they claims to hold such office. Mr. Basharatullah, learned counsel was of the opinion that a writ of quo warranto can be refused if Court is convinced that the petitioner in order to achieve personal interest has prayed for its issuance. He referred to PLD 1969 Kamal Hussain v. Sirajul Hassan. We believe that in the reported case respondent Muhammad Sirajul Haq, the petitioner before the Dacca High Court had an interest in the election of East Pakistan Bar Council, therefore, keeping in view the particular facts of the case and Hon'ble Supreme Court observed that writ of quo warranto in particular is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. Whereas in the instant case careful perusal of the contents of petition as well as the representations made by the petitioner to the Government indicates that they had not claimed anywhere that due to the induction of respondent No. 5 in the Balochistan Civil Services (Executive Branch) they will be directly affected. Rather their claim is that the total Provincial Service structure of the Executive Branch right from Grades 17 to 19 will adversely be affected. In the case of Masoodul Hassan v. Khadim Hussain and another PLD 1963 SC 203, the Hon'ble Supreme Court has held that writ of quo warranto in its nature is an information laying against a person who claimed or usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order that the right to the office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature.
Similarly in M.U.A, Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228 the Hon'ble. Supreme Court held that the writ of quo warranto could be moved by any person who even may not be an aggrieved party, but is holding a public office created by character or statute by the State.
A Division Bench of this Court in the case of Saifuddin v. Chamber of Commerce, Balochistan and others PLD_ 1982. Quetta 136 has followed the dictum laid down by Hon'ble Supreme Court, referred to hereinabove.
The learned Deputy Attorney‑General however was of the opinion that the Constitutional bar under Article 212 oust the jurisdiction of High Court in the matters relating to the terms and conditions of service of any employee. Since in this petition, the notification of the induction of respondent No. 5 in the service of Provincial cadre relating to determine his eligibility to hold the post has been impugned, therefore, the petition is not maintainable as is laid down in Syed Badruddin and 10 others v. Government of N: W.F.P. PLD 1994 SC 345). In this case the petitioner initially filed a civil suit for declaring that the conditions imposed by the Government that officers working in Grade‑17 in the Agriculture, Forest and Cooperative Department on the agriculture side or on the Animal husbandry side, who were simple graduate were not eligible for further promotion unless they acquire higher qualification of M.Sc. etc. was illegal and contrary to the service rules. The decree as prayed for was granted. However in appeal, the District Judge concurred with the trial Court but in the Civil Revision Petition before the High Court it was concluded that controversy raised in the civil suit relates to the terms and conditions of service as such, the Civil Court has no jurisdiction to decide the issue. Whereas in the instant case as far as the petitioners are concerned they have not claimed the relief of their eligibility to hold a particular post. Learned Counsel also relied on Muhammad Amir and others v, Abdul Haseeb and others PLD 1994 SC 534. In this case the matter relates to the promotion of Appraisors in the Custom Department. The concerned Officers obtained a favourable administrative order from the then President of Pakistan. In pursuance whereof, a notification dated 15th September, 1992 was issued to implement the same and accordingly seniority list was issued by the department. In consequence whereof, the petitioners were promoted as such, the respondents challenged the Notification in a writ petition before the Sindh High Court which was allowed. Thereafter the matter was taken up before the Hon'ble Supreme Court and with this background, it was declared that a service appeal before the Tribunal was maintainable instead of filing a writ petition. This judgment is also distinguishable in view of the facts of instant case, because here the petitioners are not claiming seniority or promotion over respondent No. 5 but their case is that his induction in the Provincial service has been made by the Provincial Government contrary to the relevant rules and due to this reason he has no lawful authority to occupy a public office. In somewhat identical matter a case came up for consideration before the High Court of AJ&K titled as Ali Hussain Bukhari and 39 others v. AJ&K Government through Chief Secretary and 2 others PLJ 1992 AJK 7 wherein it was held that to challenge an appointment, the writ in the nature of quo warranto can be instituted. It may be noted that section 47 of Interim Constitution Act, 1972 is identical to Article 212 of the Constitution of Islamic Republic of Pakistan. It would be helpful to reproduce herein below, the relevant para from the judgment:
"This brings me to the last and the most important point as to the relief the Court can grant in this case. The appointment of the respondent, as said earlier, has been challenged on the ground that he is not qualified to hold the post of DFC (Deputy Conservator of Forests). Any person can move the High Court to challenge the unauthorised occupation of a public office. The Court, on any such application, is not to see that the incumbent is holding the office under the order of a competent authority, but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has also to see, if statutory provisions are alleged to have been violated in making the appointment. The invalidity of appointment may arise rot only from want of qualifications but also from violation of legal provisions for appointment. A person seeking the redress…
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