KHALID MAHMOOD Versus TARIQ MAHMOOD JANJUA

Petitioner who claims to be a public spirited person has filed this Constitutional petition praying that "respondent No. 1 may be called upon to show under what authority of law he is holding the post of Executive Engineer in Local Government and Rural Development Department, Gujranwala and consequently his order of appointment dated 14‑3‑1989 may please be quashed".

2. Facts giving rise to this petition are that Tariq Mahmood Janjua, respondent No. 1 was a Member of Local Council Service under the Punjab Local Government Board constituted under section 42‑A of the Local Government Ordinance, 1979. He was serving as District Engineer (Grade‑18) in Zila Council, Rawalpindi when by order dated 14‑3‑1989 (Annexure `A') passed by respondent No. 2, the Secretary Local Government and Rural Development. Government of Punjab, he was taken on deputation in' Local Government and Rural Development Department and posted as Executive Engineer, Local Government and Rural Development, Gujranwala Division vice Mr. Shabbir Ahmad Chughtai who was directed to report to the Government for further posting with immediate effect. Validity of the appointment of respondent No. 1 as Executive Engineer, Local Government and Rural Development Department has been called in question through this Constitutional petition on the ground that it was in flagrant violation of the Punjab Local Government and Rural Development Department Service Rules, 1981 whereunder posts of XEN are to be filled by promotion on the basis of Seniority‑cum‑fitness from Assistant Engineers/Assistant Directors (Tech.) having five years' service as such and possessing a B.Sc. degree in Engineering or AMIE or equivalent qualification and if none is available by promotion, then by transfer or initial recruitment in which case, the qualification prescribed is B.Sc. Civil Engineering or AMIE or equivalent qualification with three years' experience. It was alleged in para. 3(iii) of the writ petition that several Assistant Engineers eligible for promotion such as Rahat Ali Mughal, Ubaidullah Rathore and Muhammad Aslam were available in the Department and, therefore, resort to other methods of appointment such as by transfer on deputation could not be had unless it was found by the Departmental Promotion Committee that no Assistant Engineer/Assistant Director was suitable for promotion which determination was never made. It was further averred that even the transfer on deputation could only be made on the recommendation of the Departmental Promotion Committee but the name of respondent No. 1 was never placed before such a committee. It was added that, in fact, appointment by transfer could only be made from another Government Department and not from a Local Authority or an Autonomous Body and the respondent being a member of Local Council service was not at all eligible to be sent on deputation in the Local Government and Rural Development Department. Petition also sought to challenge the vires of Rule 15 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which provided that a person in the service of an Autonomous or Semi‑Autonomous Organisation possessing requisite qualification and experience was eligible for appointment to the post in the civil service on deputation. The Rule in question, it was said, was ultra vires of the Punjab Civil Servants Act and the rule making power of the Governor under section 23 of the said Act. Yet another objection taken in the petition was that respondent No. 1 was, in any case, ineligible for appointment as an Executive Engineer in the Local Government and Rural Development Department as he did not have requisite three years' experience as Executive Engineer at the time of his impugned appointment.

3. Respondent No. 1 in his written statement took a preliminary objection that the writ petition suffered from gross laches. It was stated that the impugned appointment was made on 14‑3‑1989 but the writ petition was filed on 25‑3‑1991 i.e. after a period of more than two years. Bona fides of the writ petitioner were also called in question by alleging that he had filed the writ petition only to serve the interest of three Assistant Engineers named in para. 3(iii) of the writ petition. On merits, it was stated by respondent No. 1 that none of the Assistant Engineers serving in the Department was eligible to be promoted as Executive Engineer for the reason that they had not passed the Departmental Professional Examination which was a prerequisite to the eligibility for promotion as Executive Engineer and that the appointment of respondent No. 1 was made by the competent authority in a lawful manner under the Statutory Rules. It was claimed by respondent No. 1 that Rule 15 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was intra vires and competently framed and that the order of his appointment fell within the purview of the said Rule.

4. During the hearing of this petition, learned counsel for the petitioner mainly assailed the vires of Rule 15(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as it was heavily relied upon by the learned counsel for respondent No. 1 to defend the impugned appointment. Rule 15(1) is in the following terms:

"(1) A person in the service of an Autonomous or Semi‑Autonomous Organisation who possesses minimum educational qualifications, experience or, comparable length of service prescribed for the post shall be eligible for appointment to the said post on deputation, for a period not exceeding 3 years at a time, on such terms and conditions s may be sanctioned by the Government in consultation with the lending Organisation."

Learned counsel for the petitioner based his attack against Rule 15(1) on two‑fold grounds. His first contention was that under the Punjab Civil Servants Act, the only methods of appointment to a service of the Province or to a post in connection with the affairs of the Province are initial recruitment, promotion and transfer and that the Act does not make any provision for making appointment on deputation. It was thus contended that Rule 15(1) in so far as it made a provision for appointment to a post on deputation traveled beyond the scope of the Act and was thus ultra vires of the Act. The second ground canvassed by the learned counsel for the petitioner was based on section 23 of the Act which empowers the Governor to "make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act". According to the learned counsel, the purpose of the Act was to provide for and regulate the appointment and the terms and conditions of service of civil servants. It was contended that a deputationist was not a civil servant as per the definition of the `civil servant' contained in section 2(1)(b) and, therefore, the provision made in Rule 15(1) regarding the appointment of a deputationist was ultra wires the powers of the Governor under section 23 of the Act.

5. It was next contended by the learned counsel for the petitioner that even if the deputation was taken as a species of transfer, still respondent No. 1 could not be appointed/posted as Executive Engineer in the Local Government and Rural Development Department in view of the provisions of Service Rules of 1981 governing the method of appointment in that Department. It was pointed out by the learned counsel that according to the Punjab Local Government and Rural Development Department Service Rules, Posts of XEN were to be filled by promotion from amongst the serving Assistant Engineers and a person from outside could be posted on transfer only if no Assistant Engineer in the Department was qualified for It was contended promotion liable for by the learned counsel that several Assistant Engineers deter minim Promotion were available in the Department but without determining their or otherwise for promotion as Executive Engineers No. 1 was inducted in the Department and posted as XEN which was violative of the Departmental Service Rules. It was also contended by the learned counsel that respondent No. 1 was even otherwise ineligible for appointment as Executive Engineer as he did not have three years' experience prescribed in the Service Rules of the Department.

6. To meet the objection of delay in filing the writ petition, learned counsel for the petitioner relied upon two cases, one reported as Arshad Hussain v. Government of Sindh (PLD 1982 Karachi 604) and the other as Muhammad Sadeque (PLD 1965 Dacca 330) to contend that the delay in filing a petition for a writ of the nature of quo warranto is of no consequence if a person holds a public office without authority of law which constitutes a continuous wrong. It was held in the Karachi case that "in proceedings in the nature of quo warranto delay by itself has never been considered sufficient for the purpose of defeating a petition. (See Athar Rahman v. Muhammad Latif Tirmizy etc. (PLD 1981 Lahore 48). If a person holds a public office without the authority of law that is a continuous wrong and such a wrong whenever in question has got to be set right. Even otherwise, the question of laches has to be considered on the facts and circumstances of each case. In some case a delay of three months may be fatal and in another a delay of years may have to be condoned". Reliance was also placed on Dr. Sher Bahadur Khan v. Government of West Pakistan etc. (PLD 1956 (W.P.) Peshawar 77). It was held therein that "The writ of quo warranto is meant to have the right of a person to a public office determined in the interest of public generally. If in answer to this writ, the officer produces an authority, which is bad in law and is ultra vires of the person giving it then irrespective of the fact as to when was that authority given, it will be the duty of the Court to declare such person not entitled or qualified to hold that particular office, and by the issue of the writ of prohibition prevent him from functioning as such".

In reply to the objection regarding bona fides of the petitioner is filing this petition, the learned counsel referred to a judgment of this Court reported as Muhammad Siddique Raja v. Government of the Punjab (1991 CLC 617) wherein the argument that the writ petition was mala fide and manoeuvred to knock out the respondent therein from competition for promotion was repelled with the observation that "this argument does not arise in the writ of quo warranto where a citizen only draws the attention of the Court to call upon the respondent holding a public office to show cause under what authority he is holding the said public office". Reliance was also placed on Muhammad Khan v. Lahore Cantonment Board (PLD 1964 Lahore 125) wherein it was held that "A proceeding for a writ of quo warranto is initiated to test the validity of an appointment to a public office, and a petitioner does not seek to enforce any right of his as such, nor does he complain of non‑performance of any duty towards him. What is in question is the right of the respondent to hold an office of public nature". Learned counsel also cited 1981 SCMR 74 for the broad and well‑accepted proposition that a petitioner seeking issuance of a writ of the nature of quo warranto is not required to be an aggrieved person.

7. Mr. D.M. Awan, learned counsel for respondent No. 1 controverted the submissions made on behalf of the petitioner. He in the first instance dealt with the challenge to the vires of Rule 15(1) and submitted that it was nowhere laid down in the Punjab Civil Servants Act that the appointments were to be made only through initial recruitment, promotion and transfer and in no other manner such as inducting a person on deputation. Learned counsel with reference to the definition of `civil servant' contained in section 2(1)(b) of the Civil Servants Act contended that the persons holding posts in the Province on deputation were also within the contemplation of the Act. He also pointed out that under section 4 of the Act, appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province are to be made in the prescribed manner, which means in the manner prescribed by the Rules. Learned counsel contended that in view of these provisions, Rule 15(1) providing for the appointment of a person on deputation was quite consistent with the Act. Learned counsel next contended that it is true that a deputationist is not a civil servant within the meaning of the term `civil servant' as defined in section 2(1)(b) but it is not correct that the purpose of the Act was to provide only for appointment and terms and conditions of service of a civil servant. Learned counsel submitted that according to the preamble, the object of the Act was much broader, namely, "to regulate by law, the appointment to, and the terms and conditions of the service of the Province of the Punjab and to provide for matters connected therewith or ancillary thereto". It was submitted that appointment to the service of the Province being one of the purposes of the Act, the provision made in Rule 15(1) for appointment of a person to a post in connection with the affairs of the Province was well within the purview of section 23 of the Act which empowers a Governor to make such Rules as appear to him to be necessary or expedient for carrying out the purposes of the Act:

In reply to the arguments of the petitioners counsel based on the provisions of Local Government and Rural Development Department Service Rules, 1981, it was submitted by the learned counsel appearing for respondent No. 1 that none of the serving Assistant Engineers was eligible for promotion as they had not passed the Departmental Professional Examination and, therefore, there was no question of placing their cases before the Departmental Promotion Committee to test their suitability for promotion as Executive Engineers. There was thus no bar to the appointment of respondent No. 1 as the Departmental Rules themselves provided for filling the post of Executive Engineer through transfer in case Departmental candidate was not available. As regards the objection that respondent No. 1 did not have the requisite experience of three years at the time of his appointment, learned counsel submitted that the defect stood cured at the time of filing of the writ petition as by then respondent No. 1 was possessed of more than three years' experience. Writ of quo warranto could not, therefore, issue. Reliance for this proposition was placed on Sardar Asseff Ahmad Ali v. Muhammad Khan Junejo (PLD 1986 Lahore 310) wherein it was held that writ of quo warranto is not to issue in a case where disqualification stood cured at the time of the hearing of the writ petition because it is settled law that writ of quo warranto takes effect on the date of pronouncement of the High Court judgment and not from any date anterior thereto. Learned counsel also referred to Kamal Hussain v. Sirajul Islam (PLD 1969 SC 42) to contend that a writ of quo warranto is not to issue as a matter of course on sheer technicalities and 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. Learned counsel vehemently contended that the petitioner in the instant case had filed the writ petition not in the public interest but to play the game of Assistant Engineers particularly those whose names he had mentioned in the writ petition. It was also urged by the learned counsel that the inordinate delay with which the petitioner filed the writ petition reflected quite adversely on his bona fides.

8. Mr. A.G. Chaudhry, Advocate who appeared as amicus curiae, dilated on the nature, scope and ambit of writ of quo warranto. He submitted that the writ of quo warranto is not a writ of right. It is discretionary with the Court to issue it. Its scope is very limited and the Court has only to see whether appointment is by proper Authority and in accordance with law. When the respondent has produced in Court the order of his appointment to the office, the Court has only to enquire if the appointment is in violation of any statutory provision in the matter. A private Relator who himself is not an aspirant or eligible for the office cannot challenge validity of statutory provision under which appointment is made. He can only ask the Court to examine whether statutory provision has been complied with. To support these contentions, learned counsel referred to‑‑‑

(1) Muhammad Hussain v. Khadim Hussain (PLD 1963 SC 203),

(2) A.M. Khan Leghai v. Government of Pakistan (PLD 1967 Lah. 227),

(3) D. Rudriah v. Chancellor, UA.S. Bangalore (AIR 1971 Mysore 84),

(4) A. Ramachandran v. A. Alagiri‑swami (AIR 1961 Madras 450),

(5) Alex Beets v. MA. Urmese and another (AIR 1970 Kerala 312),

(6) Dineshwar Prasad v. State of Bihar (AIR 1984 Patna 13), and

(7) Basu's Commentary on the Constitution of India (Sixth Edition 1985) Vol. I, page 456.

He also supported the learned counsel for respondent No. 1 and contended that Rule 15(1) was validly framed and was consistent with the main statute. The appointment of respondent No. 1 in the purported exercise of the power under the said Rule was, therefore, not open to any exception.

9.I have given my anxious consideration to the various contentions noted hereinabove. On perusal of different provisions of the Punjab Civil Servants Act referred to by the learned counsel for respondent No. 1, I feel persuaded to accept his contention that Rule 15(1) is neither beyond the scope of the Act nor ultra vires the provision of section 23 which confers power on the Governor to make Rules to carry out the purposes of the Act. As seen above, the validity of Rule 15(1) has been assailed mainly on the ground that it is in consistent with the main statute in so far as it has provided for appointment on deputation whereas no such provision exists in the Act. It is true that no express provision exists in the statute for appointment on deputation but the presence of deputationists in the Provincial services is implicit in the definition of `civil servant', contained in section 2(1)(b) the relevant portion of which is reproduced hereunder:‑‑

" `civil servant means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, but does not include:‑

(i) a person who is on deputation to the Province from the Federation or any other Province or authority.

(ii) ...........................................

(iii) ...............................................................

Definition of `civil servant' quite clearly shows that it was within the contemplation of the Legislature that there would be persons on deputation in the Province and hence the need to exclude them from the category of `civil servants'. Viewed in this light, Rule 15(1) making a provision for appointment on deputation is perfectly in accord with the letter and spirit of the statute. Not only this, section 4 of the Civil Servants Act also provides in clear terms that the appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner which in view of the definition of the word `prescribed' means that the manner in which the appointments are to be made is to be provided for by the Rules. That being so, it was quite legitimate for the Rule making Authority to make the provision for appointment on deputation in Rule 15(1) particularly when there was no express bar in the statute against such appointments. Governor was also fully empowered under section 23 of the Act to make such Rules as appeared to him to be necessary or expedient for carrying out the purposes of the Act. To regulate the appointment to the "service of the Province" (and not of civil servants only) was one of the purposes of the Act which purpose could well be carried out by framing Rules under section 23 of the Act. The rule making Authority in making a provision for appointment to a post in the service of Province through deputation acted within the ambit of section 23 read with section 4 and the preamble of the Act. Thus, looked at from ' whatever angle, Rule 15(1) providing for the appointment on deputation vires of the Act and no legitimate exception could, therefore, be taken to the appointment of respondent No. 1 as Executive Engineer on deputation on the ground of invalidity of the said Rule. The impugned appointment of respondent No. 1 was also not hit by the Local Government and Rural Development Department Service Rules, 1981. These Rules, no doubt, provided that the post of XEN in the said Department was to be filled through promotion from amongst the Assistant Engineers/ Assistant Directors having requisite qualification and experience but it was also laid down therein that if none was available by promotion then the post of XEN could be filled by transfer or initial recruitment. Case of the respondent was that none of the serving Assistant Engineers was eligible for promotion as they had not passed the Departmental Professional Examination. This fact was not controverted by the petitioner. Appointment by transfer could, therefore, well be resorted to and it was conceded by the learned counsel for the petitioner that deputation is a species of transfer. As regards the objection that respondent No. 1 did not have the requisite experience of three years at the time of his impugned appointment, it was rightly contended on his behalf that this defect was cured with the passage of time and by the time the writ petition was filed, he already had more than three years' experience. Law is fairly well‑settled that writ of quo warranto if issued takes effect only from the date of pronouncement of High Court judgment and, therefore, High Court will not issue the writ against the holder of public office if he does not suffer from the disqualification both at the time of the institution of the writ petition and on the date of decision. Refer Assef Ahmad Ali's case (supra).

10: In the aforesaid view of the matter, the appointment of respondent No. 1 as Executive Engineer in the Local Government and Rural Development Department on deputation cannot be said to have been made unlawfully and, therefore, no case is made out for issuing the writ of quo‑warranto which even otherwise I am not inclined to issue as in my view, the petitioner has filed this writ petition not with any high motive of vindicating the public right or redressing the public wrong but presumably at the instance of some serving Executive Engineers. The inordinate delay in filing the writ petition has also remained unexplained which, too, reflects adversely on the bona fides of the petitioner. Needless to observe that since grant of relief is in the discretion of the Court, bona fides of the Relator can well be tested to see if he has come with clean hands. It was so observed in the case of Kamal Hussain (supra).

11. For the reasons aforementioned, I do not find it a fit case for issuing the writ prayed for. This writ petition is accordingly dismissed but with no order as to costs.

A.A./K‑64/L

Petition dismissed.