2026 PLD 89

ANDLEEB QAISRANI Versus GOVERNMENT OF BALOCHISTAN through Chief Secretary,

Citation2026 PLD 89

CourtBalochistan High Court

Judge(s)Naeem Akhtar Afghan, CJ and Gul Hassan Tareen

GUL HASSAN TAREEN, J.--- The petitioners, through this Constitution Petition filed under Article 199 (1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution') have, assailed the appointment of Ms. Noor Jahan Mengal ('respondent No.4') to the statutory public office of Balochistan Ombudsperson vide notification dated 21 December, 2022 and, prayed for issuance of a writ of quo warranto , that respondent No.4 was not qualified to be appointed as Ombudsperson under section 7(3) of the Balochistan Protection Against Harassment of Women at the Workplace Act, 2016 ('Act, 2016').

2. Briefly, facts of the case are that the petitioner No.1 filed a Constitution Petition No.1605/2021 before this Court whereby the appointment of the ex- Ombudsperson Mrs. Sabira Islam was assailed. This Court, vide judgment dated 29 July, 2022, declared the questioned appointment as illegal and directed the Secretary, Women Development Department, Government of Balochistan ('respondent No.3') to invite applications afresh for the office of the Ombudsperson under the Act 2016 on the basis of eligibility criteria as mentioned under section 7(3) of the said statute on merits and in accordance with the law. Soon after the judgment passed by this Court in C.P. No. 1605/2021 dated 29 July, 2022, and before the publication advertised in Daily Jang Quetta dated 26 September, 2022 for appointment of Ombudsperson, the Principal Secretary to the Chief Minister ('respondent No.2") wrote a letter dated 15 August, 2022 expressing desire of the Chief Minister, that request of the respondent No.4 to be appointed as Ombudsperson, be examined and a summary thereof be put up for his consideration. The respondent No.3 put up a summary for the Chief Minister and in para No.4 thereof opined that legal advice of the Law Department should be solicited. The Secretary Law Department added his legal advice in para Nos.10 and 11 of the summary which reads as under:

"10. Keeping the foregoing submissions in view the Law Department is of the considered opinion that she does not fulfill the criteria prescribed under section 7(3) of the Balochistan Protection Against Harassment of Women at Workplace Act, 2016.

11. Even otherwise the judgment at Annexure-A Pronounced in C.P. No.1605/2021 dated 29-07-2022, the Honorable High Court directed respondent No.4 to invite application for the position of Ombudsperson as was called earlier."

On 16 September, 2022, the respondent No.3 accordingly endorsed the legal opinion of the Law Department which reads as under:

"Accordingly, this department endorses the opinion of the Law Department that Ms. Noor Jahan Mengal does not fulfill the criter a prescribed under section 7(3) of the Balochistan Protection Against Harassment of Women at Workplace Act, 2016."

Consequently, the Administrative Department had withdrawn from its proposal in the light of the advice tendered by the Law Department.

3. The respondent No.3 vide publication dated 26 September, 2022, advertised in Daily Jang, invited applications from the qualified candidates, to fill up the vacant public office of Ombudsperson with eligibility criteria as mandated by section 7 of the Act, 2016 which reads as follows:

"7(1). There shall be an Ombudsperson preferably a woman, for the Province of Balochistan, who shall be appointed by the Government.

(2). ----------------

(3). A person shall be qualified to be appointed as the Ombudsperson, who is not less than forty five years of age, and ---

(a) has been or is qualified to be a judge of a High Court; or

(b) is or has been in the service of Pakistan in BPS-19 or above, possessing LL.B. Degree and having sufficient experience in the field of Law."

Probably due to inadvertence, instead of mentioning eligibility criteria (a) and (b) in the advertisement, the eligibility criteria (b) was bifurcated after comma and the integral part/portion of eligibility criteria (b) about 'possessing L.L.B. Degree and having sufficient experience in the field of law' was separately mentioned in the advertisement giving rise to misconception of the eligibility criteria.

4. Petitioners and 26 other candidates had applied against the said advertised statutory public office and made applications accompanied by their respective CVs. The petitioners were waiting for interview, however, vide impugned notification dated 21 December, 2022, with prior approval of Chief Minister Balochistan appointed respondent No.4 as Ombudsperson under the Act, 2016 on contract basis for a period of three years with immediate effect.

5. We have heard petitioners Nos. 1 and 2 in person, Messrs Zahoor Ahmed Baloch, Additional Advocate General and Messrs Adnan Ejaz, Abdul Malik Baloch, Muhammad Tariq Advocates for the respondent No.4 and have gone through the record of the case.

6. Learned counsel for the respondent No.4 raised preliminary objection as to the maintainability of the writ petition on the ground that petitioners are not aggrieved persons, therefore, they have no locus standi to maintain this petition.

The petitioners have sought writ of quo warranto which is a prerogative writ. The object of this writ is to determine legality of the holder of a statutory or Constitutional office and to decide as to whether the holder of such office holds the office in accordance with law or has illegally occupied a public office. For issuance of such nature of writ, the person invoking the jurisdiction of High Court is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person. In this regard we may refer to Article 199(1)(b) of the Constitution, which reads as under:

"Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, --

(a) .............

(b) on the application of any person, make an order -

(i) .............

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."

Reliance in this regard is placed on the case reported as Jawad Ahmed Mir v. Prof. Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi and others (2023 SCMR 162) wherein, the Supreme Court of Pakistan has held as under:

"....... The writ of quo warranto can be instituted by a person though he may not come within the meaning of words "aggrieved person". For the purpose of maintaining a writ of quo warranto there is no requirement of an aggrieved person, and a whistle blower need not to be personally aggrieved in the strict sense and may relay the information to the court to enquire from the person holding public office. The purpose of the writ of quo warranto 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 which of his specific legal rights is infringed. It is enough for this 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, or for the good of the society, or as a matter of principle. ......."

In view of the above, the objection raised by learned counsel for respondent No.4 is overruled. The petitioners being candidates having submitted their applications with CVs. in pursuance of advertisement made by respondent No.3 fall within the definition 'an aggrieved person' within the purview of Article 199 of the Constitution, therefore, the instant Constitution Petition is held maintainable.

7. The crux of the petitioners' arguments is that the respondent No.4 could not have been appointed as Ombudsperson for, she had not been or was not qualified to be a judge of a High Court and was not or had not been in the service of Pakistan in BPS-19 or above. The respondent No.3 put up a summary for the Chief Minster and in para No.4 thereof opined that the legal advice of the Law Department should be solicited. The Secretary Law Department added his legal opinion in para Nos. 10 and 11 (as reproduced in para No.2 above) that, the respondent No.4 does not meet the eligibility criteria as prescribed by section 7(3) of the Act 2016 and respondent No.3 should invite applications of qualified candidates for appointment to the office of Ombudsperson. On 22 September, 2022, respondent No.3 endorsed the opinion of the Law Department.

8. Respondent No.3 advertised the post of Ombudsperson. The petitioners along with 26 others candidates had applied for the said statutory public office. Respondent No.3 initiated summary dated 01 November, 2022 with proposal that a search committee comprising of the following may be allowed to be constituted for short listing 03 candidates:

Chief Secretary Balochistan

Chairperson

Secretary, GoB, Law and Preliminary Affairs Department

Member

Secretary, GoB, S&GAD

Member

Secretary, GoB, Finance Department

Member

Secretary, GoB, Women Development Department

Member/Secretary

The ToR(s) of the proposed search committee were; to conduct interviews of candidates; to check credentials and take presentation of the candidates; and to recommend a penal of three eligible candidates for the final approval of the Chief Minister for appointment as Ombudsperson.

9. On the summary, the Chief Secretary, GoB ('respondent No.1') proposed that the input of the learned Advocate General Balochistan and Law Department should be solicited. The Law Department and the learned Advocate General, GoB endorsed the proposal for constituting the search committee. The Services and General Administration Department, GoB also endorsed the proposal. However, instead of approving the summary for the search committee the Chief Minister Balochistan recommended for appointment of respondent No.4.

10. In violation of the proposal of his own department and by ignoring the note of the Law Department, GoB, respondent No.3 issued impugned notification which is illegal and was issued without lawful authority as respondent No.4 was not fulfilling the eligibility criteria mandated by section 7(3) of the Act, 2016 as she had not been or wasn't qualified to be a judge of a High Court under section 7 subsection (3) clause (a) of the Act 2016.

Qualification of a person to be appointed as a judge of High Court has been provided in clause (2) of Article 193 of the Constitution which reads as under:

"193. (1) .....

(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty-five years of age, and-

(a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) he is, and has for a period of not less than ten years been, a member of civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or

Explanation. In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.

(3) ......."

Record reveals that the respondent No.4 was enrolled by the Balochistan Bar Council as an Advocate of High Court on 16 December, 2006. Vide appointment order dated 25 April, 2007, the respondent No.4 was appointed as officiating Superintendent (Legal) in B-16 in the Gwadar Development Authority. Vide notification dated 20 March, 2017, the respondent No.4 was promoted to the rank of Assistant Director (Legal) (B-18) on regular basis and till her appointment as Ombudsperson, she used to work against the said promoted post. Therefore, per Article 193(2)(a) of the Constitution, the respondent No.4 had not been an advocate of the High Court for a period of ten years. The respondent No.4 remained as an advocate of this Court for a period of four months and ten days as, on 25 April, 2007, she was appointed as officiating Superintendent (Legal) (B-16) in Gwadar Development Authority. The respondent No.4 was not in active practice in the High Court for ten years and has been doing the job in the Gwadar Development Authority, therefore, she was not qualified to be appointed to the public office of Ombudsperson under Article 193(3) of the Constitution read with section 7(3) of the Act, 2016. Reliance is placed on the case reported as Al-Jehad Trust through Racesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) , wherein, the Supreme Court of Pakistan which enunciated as under:

"90. Under Article 193 the qualifications are specified for appointment as Judge of a High Court. One requirement is that an advocate is eligible to be elevated only when he has been advocate of the High Court for ten years. The question arose as to whether it is necessary that such advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient. We are of the view that for this requirement ten years' ears' active practice in the High Court is necessary "and mere enrolment as advocate of-the High Court is not enough if the advocate concerned has not practiced in the High Court but has been doing some other job or business and was not in active practice."

11. So far as second criteria prescribed by section 7(3)(b) of the Act, 2016 is concerned, the respondent No.4 was not and had not been in the service of Pakistan in BPS-19 or above. The service of respondent No.4 in the Gwadar Development Authority or her promotion to the rank of Assistant Director (Legal) (B-18) in the Planning and Development Department, GoB was not the service of Pakistan in BPS-19. Therefore, respondent No.4 could not have been appointed as Ombudsperson under section 7(3)(b) of the Act, 2016.

12. The Law Department, GoB had also commented upon the eligibility of respondent No. 4 as under:

"15. In pursuance of paras 6 and 7/n, the section 7(3) of the Balochistan Protection against Harassment of Women at Workplace Act provides the criteria for the appointment of the ombudsperson and as per clause (b) of subsection (3) of section 7 and as per advice by the Law Department, Ms. Noor Jahan Mengal had never been in service in BPS-19, hence her appointment as ombudsperson under clause (b) of subsection (3) of section 7 of the act is out of question.

16. As per views of Law Department contained at paras 8 and 9/n, which states that Ms. Noor Jahan Mengal remain in service as Advocate of High Court, Superintendent (B-16) in Gwadar Development Authority and still working in said authority as Assistant Director (Legal) (BPS-17). She never been an actively practicing Advocate of High Court, therefore, as per findings of the Hon'ble Supreme Court of Pakistan in its landmark judgment pronounced in al-Jehad Trust Case a member of the bar must have practiced as an Advocate of High Court for ten years, so as to render eligible for appointment as a Judge of High Court. This department concludes that Ms. Noor Jahan Mengal is not eligible for the appointment as a Judge of High Court. Hence, as per clause (a) of subsection (3) of section 7, she likewise does not qualify for the appointment against the post of Ombudsperson."

13. For what has been discussed and observed above, the Constitution Petition is accepted. The appointment of respondent No.4 as Ombudsperson vide impugned notification dated 21 December, 2022 by the respondent No.3 with prior approval of the Chief Minster Balochistan is declared null, void, without lawful authority and of no legal effect. The respondent No.4 is restrained from acting as Ombudsperson with immediate effect.

Respondent No.3 is directed to appoint Ombudsperson on the strength of criteria mandated by section 7(3) of the Act, 2016 strictly in accordance with law in pursuance of the advertisement already made.

The instant judgment shall not affect in any manner the decisions made or proceedings taken by the respondent No.4 as Ombudsperson under the Act, 2016 nor it will affect in any manner the administrative orders and appointment(s) made, if any, by the respondent No.4 as Ombudsperson.

Office to communicate copy of this judgment to the respondents as well as to the Principal Secretary to the Governor Balochistan for information and immediate compliance.

UN/20/Bal. Petition allowed.