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Petitioner: SOHAIL BAIG NOORI VS Respondent: HIGH COURT OF SINDH
2017 P L C (C.S.) 1142 [Sindh High Court] Before Muhammad Ali Mazhar and Anwar Hussain, JJ SOHAIL BAIG NOORI Versus HIGH COURT OF SINDH through Registrar and 2 others C.P. No.D-6737 of 2015, decided on 30th June, 2016. (a) Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006--- -----Rr. 3, 4, 5 & 19---Writ of quo warranto---Appointment of Chairman Inspection Team of High Court (Sindh) on contract basis---Upgradation---Scope---Contention of petitioner was that appointment of Chairman Inspection Team of High Court (Sindh) had been made against law and rules---Validity---Appointment of Member Inspection Team might be made by transfer of one of the senior District Judge and by promotion of an officer of High Court serving under BPS-19 on regular basis provided he was law graduate with length of seven year service---No contractual appointment could be made on the said post---Schedules appended to statutes would form part of the same---Chief Justice could create, abolish or upgrade and downgrade a post but no post in pay scale 16 or above might be created or abolished without concurrence of Administration Committee of the High Court---Chief Justice had no power to change the nomenclature of any post---Nothing was on record that any concurrence of Administration Committee was obtained before appointment of Chairman Inspection Team---Appointment of respondent was defective as no amendment was made in the schedule under R.19 of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006---No upgradation could be made to benefit a particular individual---Creation of new post or its upgradation did not mean that induction might be made on contract basis but it was linked with non-availability of suitable person---No advertisement was published for inviting applications for the present post nor equal opportunity was provided to other persons---Name of respondent was mentioned to offer the post without mentioning anything in this regard that no other suitable person was available to hold the post in question which was requirement of R.5(d) of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006---Appointment of retired employee on contract (as in the present case) had been denounced by the Supreme Court---Respondent, therefore, was holding the Office of Chairman Inspection Team of High Court (Sindh) without lawful authority---Impugned notification of appointment was set aside and respondent was directed to relieve the charge with immediate effect---Constitutional petition was disposed of in circumstances. PLD 2009 SC 789; 2010 SCMR 632; 2000 SCMR 632; PLD 1998 SC 161; Civil Appeals Nos.169-K to 177-K of 2011; PLD 1975 SC 244; PLD 2012 Sindh 232; AIR 1952 Nagpur 330; PLD 1966 (W.P) Lah. 770; 2015 SCMR 456; PLD 2011 SC 277; PLD 2013 SC 443; 2013 SCMR 1752; Principles of Statutory Interpretation By Guru Prasanna Singh, page 149; Maxwell on the Interpretation of Statutes, Twelfth Edition, by P. ST. J. Langan of Lincoln's Inn, and of King's Inns, Dublin, page-12; N.S. Bindra's Interpretation of Statutes, Eleventh Edition by Amta Dhanda, page 253; American Jurisprudence Volume 42, page 879, Corpus Juris Secundum, Volume LXVII, page 97-98 and Stroud's judicial Dictionary, Fifth Edition, Volume 4, page 2092-2093 ref. Principles of Statutory Interpretation By Guru Prasanna Singh. Page 149; Maxwell on the Interpretation of Statutes, Twelfth Edition. Page 12; N.S. Bindra's Interpretation of Statutes, Eleventh Edition. Page 253; The Law of Extraordinary Legal Remedies by Forrest G. Ferris and Forrest G. Perris. JR. of the St. Louis Bar; Halsbury's Laws of England, Fourth Edition, 2001, Reissue, Volume 1(1). Page 14 and 404; Allah Ditta v. Muhammad Munir and others PLD 1966 (W.P.) Lah. 770; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Kumari Shrilekha Vidyarthi v. State of U.P. and others AIR 1991 SC 537; G.D. Karkare. v. T. L. Shevde and others AIR 1952 Nagpur 330; American Jurisprudence, Volume 42 Page 879; Stroud's Judicial Dictionary of Words and Phrase, Fifth Edition Pages 2092-2093; Corpus Juris Secundum, Volume LXVII. Pages 97-98; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan PLD 1993 SC 375; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 PLD 2011 SC 277; Suo Motu Case No.16 of 2011 PLD 2013 SC 443; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Suo Motu Case No.24 of 2010 In the matter of (Regarding Corruption in Hajj Arrangements in 2010 2015 PLC (C.S.) 73 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789 rel. (b) Constitution of Pakistan--- ----Art. 199---Constitutional petition---Quo warranto, writ of---Essentials for issuance of writ of quo warranto were that a holder of the post did not possess the prescribed qualification; that appointing authority was not competent to make appointment and that procedure prescribed by law had not been followed. (c) Constitution of Pakistan--- ----Art. 203---Functions of Registrar and Member Inspection Team---Scope. (d) Constitution of Pakistan--- ----Art. 199---Quo warranto, writ of---Nature and scope. AIR 1965 SC 491 and Halsbury's Laws of India, Volume 35. Page 145 rel. (e) Constitution of Pakistan--- ----Art. 199---Writ of quo warranto against employee of High Court---Bar of jurisdiction contained in Art.199(5) of the Constitution---Scope---High Court could entertain and decide a petition of quo warranto against its employee and rigors and or bar contained under Art.199(5) of the Constitution did not apply to make inquiry and investigation for issuing such writ against a person whose appointment was under challenge on the ground that he did not possess the prescribed qualification; appointing authority was not competent to make appointment and procedure prescribed by law was not followed. Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board and others 1993 PLC 673 rel. (f) Constitution of Pakistan--- ----Art. 203---Independence of judiciary---Object and scope. Messrs Shaheen Air International Limited v. Messrs Voyage of DE Air 2006 SCMR 1684 rel. (g) Constitution of Pakistan--- ----Art. 189---Decision of Supreme Court---Binding effect---Decision of Supreme Court to the extent that it had decided a question of law or enunciated a principle of law was binding on all other courts in Pakistan. Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel. (h) Words and phrases--- ----'Public office'---Meaning. (i) Words and phrases--- ----'Public officer'---Meaning. (j) Words and phrases--- ----"Chairman"---Meaning.
Abdul Abid for Petitioner. Petitioner is also present. Salahuddin Ahmed, Amicus Curiae. Ghulam Mustafa Memon, Registrar, Sindh High Court. Sibtain Mehmood, A.A.G. Dates of hearing: 19th, 26th February, 4th, 21st and 28th March, 2016. JUDGMENT MUHAMMAD ALI MAZHAR, J.--- This petition of quo warranto has been brought to challenge the appointment of respondent No.2 as Chairman Inspection Team (C.I.T), Sindh High Court Establishment. 2. The petitioner is by profession an advocate. He is also convener of Justice Lawyers Front (J.L.F), Karachi. He argued in person that the respondent No.2 was elevated as judge of this court on the advice of then Chief Justice of Pakistan Mr. Justice Abdul Hameed Dogar. He referred to the judgment reported in PLD 2009 SC 789 and further argued that in view of the dictum laid down in the aforesaid judgment by the apex court, the respondent No.2 is not a retired Judge of this court. He was initially appointed on contract basis as Chairman Inspection Team vide Notification dated 30.07.2015 on up-gradation of the post of M.I.T-I but subsequently, he was also allowed to officiate as Registrar of this court as a former Judge of the High Court which amounts to contempt of the Hon'ble Supreme Court. So far as the merits of the case are concerned, he argued that the appointment of the respondent No.2 on contract basis is sheer violation of the judgment of the Hon'ble Supreme Court passed in Criminal Original Petition No.89 of 2011. The appointment of respondent No.2 on contract basis is also clear-cut violation of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 which clearly provides that the post of M.I.T should be filled by transfer/promotion amongst senior most District and Sessions Judges. The respondent No.2 was retired from the post of District and Sessions Judge so he cannot be appointed on contract basis. He further argued that the Notification for the appointment of respondent No.2 clearly indicates that in order to accommodate him, the post of Chairman Inspect Team was created which could not be done under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 without the concurrence of the Administration Committee. He moved an application to the Hon'ble Chief Justice of this court against the appointment of the respondent No.2 but no action was taken. The up-gradation and creation of new post under the guise of change of nomenclature was a person specific to accommodate the Respondent No.2 alone which is not permissible. The appointment on contract basis creates frustration amongst the existing employees for the simple reason that their venue of promotion or progression may be blocked. The petitioner argued that in the writ of quo warranto, the bar contained under Article 199 (5) of Constitution does not apply. The petitioner also referred to Suo Motu Case No.24 of 2010 decided by the Hon'ble Supreme Court and along with statement, he produced at least three orders issued by the Registrar of this court on 01.02.2011, whereby, the contracts of three employees were terminated in pursuance of the order passed by the Hon'ble Supreme Court in Suo Motu Case No.24 of 2010. He robustly argued that on one hand, the engagement of contractual employees were terminated in the year 2011 on the basis of dictum laid down by Hon'ble Supreme Court but again in 2015, the Chairman Inspection Team has been appointed on contract basis which is sheer violation of the Apex Court's judgment. In order to meet the office objection, learned counsel referred to 2010 SCMR 632 and an unreported order passed by the Hon'ble Supreme Court on 06.01.2016 in Civil Appeals Nos.169-K to 177-K of 2011. 3. Mr. Salahuddin Ahmed, learned Amicus Curiae argued that the post of Member Inspection Team is a public office. The note of the then Registrar dated 27.07.2015 attached with the counter affidavit of the respondent No.2 clearly indicates that in order to improve the working of district judiciary, a proposal was given to the Hon'ble Chief Justice of this court to upgrade the post of Member Inspect Team to B.P.S-22 with change of its nomenclature as Chairman Inspect Team with direct reporting line to the Chief Justice and Senior Pusine Judge. In the same note further proposal was given that offer of appointment may be given to respondent No.2 to assume the charge of this post in order to improve the working of district judiciary. It is further stated in the same note that the functions and assignments be undertaken by Inspection Team will be decided after discussion with respondent No.2 once he assumes the charge of the post. He further argued that the proposal floated for the up-gradation and changing the nomenclature clearly indicates that it is not merely a change of nomenclature or up-gradation but it amounts to creation of new post on account of reorganization and restructuring the Inspection Team Department of this court. He referred to Rule 4 of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006 and argued that though in this Rule, the Chief Justice may create or abolish, upgrade and downgrade the post temporary or permanent but the post in pay scale 16 or above may be created or abolished with the concurrence of the Administration Committee. He also referred to methods of appointment provided under Rule 5 which includes direct recruitment, by promotion, by posting the judicial officer and in case of no suitable person available for appointment in clauses (a) to (c), then a person may be appointed on contract for a period not exceeding three years on such terms and conditions as may be laid down in contract of appointment. He argued that before appointing any person on contract, it was to be judged first whether any other suitable person is available for appointment to the post or not. The note placed before the Chief Justice by the then Registrar does not show any exigency that offer was made to the respondent No.2 due to non-availability of any suitable person for the appointment. Another limb of the argument was that the creation of post of Chairman Inspect Team after its up-gradation in B.P.S-22 could not be done without concurrence of the Administration Committee. Keeping in view the available record including the comments of respondents Nos.2 and 3 nothing has been brought forwarded for the consumption of this court to see whether any concurrence was obtained from the Administration Committee or not on the appointment in issue. He also shown us office order dated 12.02.2007 issued under Rule 4 of the Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006, whereby, with the concurrence of the member of Administration Committee of this court, the Chief Justice was pleased to create post of M.I.T-II in B.S-20 earlier. He also referred to Rule 3 of the Rules, 2006 and argued that the strength of persons/employees holding post in this court are specifically mentioned in part-I and part-II of the Schedule appended to the Rules. The post of Registrar is provided at Serial. No.1 of the Rules while the second entry is for M.I.T. First of all no amendment was made in the Schedule of the Rules which is an integral part of the Rules and if it is assumed that the post of M.I.T-I has been upgraded in B.P.S-22 with the change of nomenclature of Chairman Inspection Team even then no direct appointnient on contract basis could have been made but the post could be filled only by transfer of one of the senior District Judges serving under the High Court or by promotion the officer of the High Court serving in BPS-19 on regular basis provided he is a law graduate. It was further contended that time and again the Apex Court deprecated the appointments of the retired persons on contract basis, he referred to an order passed by the Apex Court in Suo Motu case No.24 of 2010 due to which at least the contract of three employees of this court were terminated. So far as the niceties of Article 199(5) of the Constitution is concerned, learned amicus curiae also relied upon the case reported in 2000 SCMR 632 and an unreported order passed by the Apex Court in Civil Appeals Nos.169-K to 177-K of 2011. He further argued that the terms of engagement unequivocally show that the respondent No.2 is holding a public office. Under Article 203 of the Constitution, 1973, this court has to supervise and control all courts subordinate to it and to ensure that the subordinate courts are functioning honestly, efficiently and in the public interest. The purpose of establishing MIT department is to facilitate the general public so that their complaints may be attended and resolved. This is the reason that is why, vide order dated 06.09.2007, the Registrar of this court issued the office order showing the reason of creating post of MIT-II and posts of two additional MITs with their functions. He further argued that despite bar contained under Article 199(5) of the Constitution, the writ of quo warranto is maintainable against the respondent No.2. In support of his argument, he referred to PLD 1998 SC 161, 2010 SCMR 632, unreported order of the Apex Court in Civil Appeals Nos.169-K to 177-K of 2011, PLD 1975 SC 244, PLD 2012 Sindh 232, AIR 1952 Nagpur 330, PLD 1966 (W.P.) Lahore 770, 2015 SCMR 456, PLD 2011 SC 277, PLD 2013 SC 443, 2013 SCMR 1752, Principles of Statutory Interpretation By Guru Prasanna Singh, page 149, Maxwell on the Interpretation of Statutes, Twelfth Edition, by P. ST. J. Langan of Lincoln's Inn, and of King's Inns, Dublin, page-12 and N.S. Bindra's Interpretation of Statutes, Eleventh Edition by Amita Dhanda, page 253. 4. Notice was issued to the respondent Nos.2 and 3. They filed their comments but did not prefer to engage any counsel for representing them in the court nor did they appear in person to argue their case. The respondent No.2, Dr. Zafar Ahmed Khan Sherwani, challenged the maintainability of this petition of quo warranto bearing in mind the niceties of Article 199(5) of the Constitution. However, he failed to repudiate the defects deciphered by the petitioner in his appointment nor did he controvert the main plea that his appointment is made without the concurrence of the Administration Committee of this High Court Establishment. Mostly he remained confined to his appointment as Additional Judge of this court for which he referred to the judgment reported PLD 2009 SC 789 (Sindh High Court Bar Association v. Federation of Pakistan). He further insisted that he can write the words "Retired Justice" as prefix to his name as according to his understanding, the above judgment does not create any bar against this ascription or provenance. Finally he stated that he was retired as District and Sessions Judge on 14.3.2010 but his status of a former judge of this court did not cease, therefore the Registrar of this court rightly recommended his name for the appointment of Chairman, Inspection Team, Sindh High Court on contract basis. Along with the comments he has also attached a copy of note of the Registrar placed before the former Chief Justice of this court for up-gradation of Member Inspection Team-I post to BPS-22 and change of its nomenclature as Chairman, Inspection Team. 5. The respondent No.3, Mr.Abdullah Channa, Member Inspection Team-II has also filed his comments and taken the same plea that the petition is not maintainable under Article 199(5) of the Constitution. He further stated that he is bound to issue notification under the direction of the Hon'ble Chief Justice, however, he further submitted that since this petition of quo warranto has not been moved against his office therefore, no further comments are required to be filed by him. 6. The Registrar of this court in his comments and oral submission took the plea that the post was upgraded with the change of nomenclature which is not creation of a new post. He further stated that vide office note dated 4-1-2006 the function of the Registrar and Member Inspection Team-I were prescribed. The Registrar is required to deal with all matters relating to the Administration and other affairs of the High Court Establishment while the Member Inspection Team-I was required to assist the Chief Justice and Senior Pusine Judge in the matters pertaining to the conduct and discipline of judicial officers. The Deputy Registrar (Confidential) and other officers dealing with such matters are required to report to Member Inspection Team-I. So far as the job description of the Chairman, Inspection Team is concerned the learned Registrar responded in paragraph 3 of his comments as under:- "3. That vide office note dated 27.7.2015 (Annexure-"E") the post of MIT-I was upgraded from BPS-21 to BPS-22 and its nomenclature was changed from Member Inspection Team-I to Chairman Inspection Team. However, it was ordered that the functions and assignments of the Chairman Inspection Team will be decided after discussion with Dr. Zafar Ahmed Khan Sherwani, once he assumes the charge of the post, in order to improve the working of the District Judiciary. After approval by the Hon'ble Chief Justice, the notification dated 30.7.2015 (Annexure-"F") was issued. The functions and assignments of the post of Chairman Inspection Team are yet to be decided. Nevertheless, Dr. Zafar Ahmed Khan Sherwani has orally informed that draft regarding functions and assignments of the Chairman Inspection Team has been submitted to the Hon'ble Chief Justice by him for approval and hitherto same is not approved." 7. The learned A.A.G argued that under Rule 4 of the Sindh High Court Establishment (Appointment and Conditions of Service) Rules, 2006, the Chief Justice may create or abolish, upgrade and downgrade a post temporary or permanently. However, the post in pay scale 16 or above may be created or abolish with the concurrence of the Administration Committee. Though the note of the Registrar made for up-gradation and change of nomenclature but from the order it is clearly transpiring that it was not mere up-gradation or change of nomenclature but it was a creation of new post which could have been done only with the concurrence of Administration Committee according to the rules framed under Article 208 of the Constitution. While creating post, the corresponding changes have also not been made in the Schedule appended to the Rules, 2006. He further argued that the public office has not been defined in the present Constitution but this definition was mentioned in our 1962 Constitution. However, definition of the holder of public office is provided under Section 5(m) of National Accountability Bureau Ordinance, 1999. He further referred to Section 2(17) of C.P.C. which provides the definition of public officer. He also referred to the definition of "office", "officer", "public office" and "public officer" as enunciated in the American Jurisprudence Volume 42, page 879, Corpus Juris Secundum, Volume LXVII, page 97-98 and Stroud's Judicial Dictionary, Fifth Edition, Volume 4, page 2092-2093. Note: All learned counsel jointly made a request that this matter may be heard and decided at Katcha Peshi stage and they argued their case extensively. 8. Heard the arguments. The writ of quo warranto is in the nature of writ of right for the king against any subject who claim or usurp any office, to enquire by what authority he supported his claim in order to determine the right. Quo warranto proceeding affords a judicial remedy by which any person who holds an independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office. In other words this specie of writ gives judiciary a weapon to control executive action from making appointment to public office against the law. This also protects the public from usurper of public office. The purpose of writ is to pose a question to the holder of a public office where is your warrant of appointment by which you are holding this office? In the writ of quo warranto no special kind of interest in the relator is needed nor is it necessary to explain what of his specific legal right is infringed. It is enough for its issue that the relator is a member of the public and acts bona fide. This writ is more in the nature of public interest litigation where undoing of a wrong or vindication of a right is sought by an individual for himself but for the good of the society or as a matter of principle. For the purpose of maintaining writ of quo warranto there is no requirement of an aggrieved person, but a whistle blower need not to be personally aggrieved in the strict sense may lay the information to the court to enquire from the person holding public office. The conditions necessary for issuance of writ of quo warranto are that the office must be public and created by a statute or constitution itself; the office must be substantive one not merely the function of an employment of a servant at the will during the pleasure of others; there has been contravention of the constitution or a statute or statutory instrument and appointing such person to that office, while essential grounds for issuing writ of quo warranto are that a holder of the post does not possess the prescribed qualification; the appointing authority is not competent authority to make appointment and that the procedure prescribed by law has not been followed and the burden of proof is upon the appointee who has to demonstrate that his appointment is in accordance with law and rules. 9. The Halsbury's Laws of England, 3rd Edition Vol. II, dealt with writ of quo warranto in the following terms. (Also See AIR 1965 SC 491). "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that…
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