MUHAMMAD NASEEM HIJAZI vs PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning and 2 others

' IFTIKHAR MUHAMMAD CHAUDHARY, J.---Petitioner seeks leave to appeal against judgment, dated May 1, 2000 in I.C.A. No.907 of 1998 passed by a Division Bench of Lahore High Court, Lahore maintaining judgment, dated September 25, 1998 in Writ Petition No.13002 of 1998.

1. Precisely stating facts of the case are that in the month of November, 1992 petitioner approached Chief Minister, Punjab for a suitable job in the Province. His request was entertained and approval for his appointment as Deputy Director (General Cadre) in G.D.A. (Gujranwala Development Authority) in relaxation of Rules/Regulations vide letter, dated 23rd October, 1992 was accorded to and Director-General, G.D.A. Was asked to take further necessary steps in this behalf. In pursuance whereof the Director-General put up the case before the Minister/Chairman, G.D.A. Recommending that appointment of petitioner may be made on contract for three years as DD or AD subject to settling terms and conditions separately. Accordingly petitioner was appointed as Deputy Director BS-18 vide G.D.A. Notification No.G.D.A./D.G./2201, dated 14th November, 1992 whereas vide Notification No.G.D.A./D.G./59, dated 16th February, 1993 his terms and conditions were also settled including one of the following conditions:-- "That re-employment is made for a period of three years on contract basis. However, the Authority may terminate the services of the officer any time .Before expiry of contract period after giving 30 days' notice or pay in lieu thereof, without assigning any reason."

' It may be observed that Director-General, G.D.A. Vide order of even date i.e., 16-2-1993 also recommended for the absorption of petitioner in G.D.A. In relaxation of Rules/Regulations because his performance during the past three months was found to be satisfactory. Simultaneously it was also recommended that as the petitioner had rendered 12 years' service as Commissioned Officer in Pakistan Army, therefore, the period of.His army service be allowed to be counted for seniority in G.D.A. For all purposes. The recommendations were approved by the Minister and vide Notification, dated 4th April, 1993 petitioner was permanently absorbed in G.D.A. As Deputy Director (Admn.) with effect from 15th February, 1993.

' It is also significant to note that vide Notification, dated 5th September, 1995 the petitioner was also promoted in B.P.S-19 on regular basis in relaxation of Rules/Regulations with effect from 5th September, 1995. But this notification was rescinded by D.-G. G.D.A., on 21st January, 1996 being issued without his explicit permission but again by means of an office order last notification was cancelled and promotion of petitioner in BS-19 was restored.

2. In the year 1998 General Secretary, Workers' Union of Gujranwala Development Authority (respondent No.3) instituted Writ Petition No.13002 of 1998 in the Lahore High Court in the nature of quo warranto challenging the appointment of petitioner. The petition was allowed on 25th September, 1998 by a learned Single Judge of Lahore High Court. Petitioner being not satisfied with this order filed I.-C.A. No.907 of 1998, which has been dismissed, vide impugned order.

3. Ch. Naseer Ahmad Bhutta learned counsel appeared on behalf of petitioner whereas Mrs. Nasira Javed Iqbal, represented the official respondent.

4. Learned counsel contended that against an appointment which has been made on contract basis writ in the nature of quo warranto under Article 199 of the Constitution of the Islamic Republic of Pakistan was not maintainable, therefore, the impugned judgments are liable to be struck down on this ground alone.

5. The argument so advanced by petitioner's counsel is not available to him at this stage, firstly for the reason that as per narration of facts noted hereinabove contractual period of petitioner's appointment came to an end when he was absorbed in the service as Deputy Director (BS-18) with effect from 15th February, 1993 vide Notification, dated 4th April, 1993. Secondly in the writ petition prayer was made that petitioner be called upon to show that by what authority he is holding office of Deputy Director, G.D.A. And 'Incahrge, WASA, Gujranwala in Grade-19 and he be restrained from holding this post during pendency of the petition. In addition to it petitioner did not object to the maintainability of the wrti petition on this score before learned Single Judge or in the Intra-Court Appeal proceedings. Thus, a new plea could not be allowed to be raised for the first time in a petition filed before B this Court under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, as held in 1998 SCM R 307.

6. Learned counsel also challenged locus standi of the General Secretary of Workers' Union of Gujranwala Development Authority on averments that he being an office-bearer of the Union with mala fide intention filed writ petition before the High Court because the petitioner after assuming the office as Deputy Director, Administration had checked illegal activities of the union and on his promotion he endeavoured to maintain financial discipline in the organization. His such efforts started reflecting against the corrupt officials of G.D.A. Including office-bearers of the union as well as other members of the organization who were in the habit of indulging in malpractices, financial corruption etc., therefore, under a well-conceived plan writ petition was filed against him in the nature of quo warranto. According to him learned Single Bench as well as Appellate Bench of the High Court without examining this aspect of the case had issued writ which has caused serious injustice to him.

7. It is true that Raheel Sarwar Pal, instituted writ petition in capacity of General Secretary, Workers'

Union challenging the status of petitioner to hold office of BPS-19 in G.D.A. For the reasons mentioned in the petition. We are clear in our mind that no interest of the General Secretary directly or indirectly was involved to challenge the service status of petitioner nor he was aspirant to be a candidate for the post which petitioner was holding in BPS-19. Inasmuch as petitioner did not place any material before this Court to canvass that legal proceedings were initiated by the General Secretary of the Union to vindicate his personal interest or the interest of any other member of the union or anyone else who is either interested in his appointment against the post which the petitioner is holding or on account of good performance of the petitioner he became interested for his removal from the service to achieve ultetior subject. Under Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to call upon him to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood-ul-Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against .Persons who claimed or usurped an office, franchise or.Liberty and was intended to inquire by what authority he supported his claim in order that right to 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 the case of M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228) this Court held that 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".

Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir i.e. Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C. S) 289), it was observed that any person can move the High Court to challenge the unauthorised occupation of a public office on any such application Court is not only 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 have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment.

' It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ulKhairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) and Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161). Thus, we are persuaded to hold that Secretary-General Workers' Union i.e. Respondent No.3 legitimately invoked the jurisdiction of the Court by filing writ in the nature of quo warranto challenging the status of petitioner to hold the office in BPS-19 in G.D.A.

8. Learned counsel on merits stated that Director-General G.D.A. Appointed petitioner as Deputy Director (Admn.) in BPS-18 in relaxation of Rules/Regulations in pursuance of directions issued to him by Chief Minister of the Province. The approval of his appointment was also obtained by D.-G., G.D.A. From the Chairman i.e., Minister, Housing and Planning, Government of Punjab. Because jurisdiction for appointment of the petitioner was exercised in accordance with Regulation No.24, therefore, petitioner's appointment cannot be held illegal. He further stated that law laid down by this Court in the case of Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court Lahore and others (1997 SCMR 104) is not applicable.

9. Mrs. Nasira Javed Iqbal learned counsel for caveators stated that petitioner had retired as Captain from Pakistan Army, therefore, in view of his earlier status in the defence service he was not eligible for appointment as Deputy Director (Admn.) BPS-18 in view of the policy of the Government of Punjab Finance Department, dated 16th July, 1980, which provides that post of Captain will be equivalent to Grade-17 in the provincial civil service. She further explained that initial induction of the petitioner in BPS-18 was contrary to the Gujranawla Development Authority (Appointments and Conditions of Services) Regulations, 1991 because before his appointment no advertisement was made in the newspaper inviting applications for selection of a best candidate for the post through general competition, inasmuch as no reasons were assigned by the then Chief Minister and Director-General, G.D.A. That how it is in the interest of authority to consider the candidature of the petitioner alone against the post of Deputy Director. She further argued that in fact the post of Deputy Director (Minn.) as per Regulations has to be filled through promotion, therefore, for this reason as well the appointment of the petitioner was illegal. The petitioner did not complete period of contract but during first six months of his induction he managed to absorb himself in the service contrary to provisions of Services Regulations.

10. The Gujranwala Appointment and Conditions of Services Regulations have been promulgated in pursuance of the Punjab Development of Cities Act, 1976 and under its section 16 the Provincial Government is competent to issue directions to the Authority from time to time in discharging its functions, acts etc. As far as the Services Regulations are concerned, originally they were enforced in Faislabad Development Authority and these Regulations, however, were made applicable in all respect to all officers of Gujranwala Development Authority, Gujranwala vide Notification, dated 12th October, 1991 issued by Housing Physical and Enviromental Planning Department, Government of Punjab, therefore, for the purpose of disposal of instant case it would be deemed that the Director-General, G.D.A., was legally bound to strictly adhere to tnese Regulations. Thus, in view of this background as well as having gone through the Services Regulations it would be seen as to whether the post of Deputy Director (Admn.) against which petitioner was appointed was available for filing up through direct recruitment. To find answer of this question reference may be made to the Schedule appended with the Services Regulations relating to the I item, post of Deputy Director BPS-18 which indicates that the Director- C General has been designated to be appointing authority and its Column No.6 prescribes the method of recruitment according to which by deputation from the Government or promotion on the basis of seniority-cum-fitness from amongst the Assistant Directors who are graduate with at least 5 years' service in Grade-17. Admittedly in view of such prescribed method of recruitment petitioner's case does not fall in its ambit in any manner.

11. Learned counsel for the petitioner emphasised that appointment of petitioner had taken place in relaxation of all relevant rules and regulations, therefore, his appointment against the post of Deputy Director was not challengeable.

' Before embarking upon this aspect of the case it would be important to note principle of law relating to discharging of duties under statutory provisions or regulations having backing of the statute namely that functionaries discharging its function under a statute providing a procedure for doing of a thing in a pan ocular manner or required to do such function in that manner or not to do at all as it has been held in the case of Atta Muhammad Qurehsi v. Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61). As per facts of instant case Chief Minister vide letter, dated 23rd October, 1992 approved the appointment of petitioner as Deputy Director (General Cadre) in G.D.A. In relaxation of Rules/Regulations. We inquired from petitioner's counsel as to whether Chief Minister as any role to play in the appointment of petitioner under relevant services regulations, he candidly conceded that no jurisdiction has been conferred upon the Chief Minister to make approvals for the appointment of officials/officers of the G.D.A. We may observe here that the Chief Minister even has no powers to relax the Rules as per para.24 of the Regulations because it is the Chairman i.e. Minister for Housing and Planning Government of Punjab who can relax the provisions of any of these Regulations subject to the condition that it is a case of hardship of an individual whose service is required to be obtained in the public interest. Admittedly in the instant case the Chairman was not provided opportunity to relax such provision as it has been observed hereinabove because the Chief Minister had already approved his appointment.

Although subsequently a Summary was prepared in the month of November, 1992 by the Director- General suggesting the appointment of the petitioner on contract basis for a period of three years but in our opinion it was a sheer futile exercise for the reasons mentioned hereinabove. -Thus, it is held that functions were not discharged by the D.-G., G.D.A. As he was required to do so, therefore, his such action has no sanctity to sustain. Now proceeding ahead it would be appropriate to note that as per Regulation 17 a person can be appointed on contract basis for a period not exceeding three years at a time on terms and conditions to be specified in the contract against a specific post where the interest of the authority so requires. A perusal of this Regulation suggests to hold that appointment is to be made by the appointing authority even on contract basis as per Regulation No.6 under which the competent authorities have been specified for appointment to various grades as per column 4 of the Schedule i.e. By the Director-General.

Admittedly in the instant case petitioner was appointed by the Director-General because approval for appointment of the petitioner had already been granted by the Chief Minister on 23rd October, 1992. Above all nothing has been shown on record to satisfy the requirement of Regulation 17 namely that it was in the interest of authority to acquire the services of the petitioner because we are of the opinion that if an opportunity would have been given to the Director-General for applying his mind he at least would have written that on account of which special knowledge/expertise of the petitioner he is being employed as Deputy Director (Admn.) on contract basis for a period of three years. It may also be added here that in absence of any special qualification in possession of the petitioner the appointing authority had a legal obligation to invite applications by making advertisement from all the eligible candidates to compete for the post of Deputy Director if it was available to ensure that a selection has been made openly, transparently and justly in accordance with Service Regulations. Thus non-providing opportunity to the eligible candidate to compete against the post of Deputy Director militates against the appointment of the petitioner. In this behalf this Court has already observed in the case of Abdul Jabbar Memon and others (1996 SCM R 1349) that initial recruitment both ad hoc and regualr to posts made by the Federal Government, Provincial Governments, Statutory Bodies and Public Authorities should be discontinued forthwith and step shall be immediately taken to rectify so as to bring such practice in accord with the Constitutional requirements.

12. Learned counsel for the petitioner submitted that re-employment of the petitioner was made by the competent Authority and if it has made departure from any provision of Regulations the petitioner cannot be penalized for the same. In support of his arguments reliance was placed by him on Director, Social Welfare N.-W.F.P., Peshawar v. Sadullah Khan (1996 SCM R 1350). In our opinion this judgment is distinguishable for the reason that after appointment of respondent his service was terminated being irregular, therefore, in that context it was observed that authoi4 having itself appointed civil servant on temporary basis could not he allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing appointment. But in the instant case the service or contract of petitioner had not been terminated by the competent official respondents being contrary to the provisions of rules/regulations because he has been removed from the service in pursuance of judicial order passed in a writ which was filed in the nature of quo warranto wherein petitioner has failed to show that how he is retaining the office of BP-19, therefore, the judgment cited by the learned counsel is of no help to him.

13. Adverting to the real controversy i.e. As to whether petitioner was competent to retain the post of BPS-19 in capacity of Director-General in G.D.A. It is to be observed that initial induction of petitioner in service of G.D.A. On contract basis has been found contrary to the Services Regulations as discussed hereinabove. Surprisingly the petitioner who had only 3 to 6 months' period of service to his credit managed not only to get himself promoted in Grade- [9 but also got himself absorbed permanently in G.D.A. We fail to come across any Regulation governing the services of employees of G.D.A. Under which the services of employee of G.D.A. Holding the post on contract basis can be absorbed particularly when in the terms and conditions of his appointment it has been mentioned that he will hold the post for a period of 3 years on contract. As far as promotion of petitioner by D.G., G.D.A. In Grade-19 is concerned that too was contrary to the Service Regulations because Grade-19 post is to be filled up by adopting the procedure prescribed as per schedule appended to the Regulations namely hiring the service of a Government employee on deputation or by selection on merit from amongst the 3 senior most Deputy Directors (Accounts) provided that he is a graduate with at least 12 years service in Grade-17 or above including 5 years' service in Grade-

18. It may also be noted that for the purpose of such promotion, Promotion Committee in terms of Regulation 4 has been constituted which comprises of Director-General, G.D.A., Director (Admn.), G.D.A., Director Finance, G.D.A. And Director concerned as Members. The case of the petitioner does not fulfil any of the conditions, therefore, his promotion in Grade-19 was absolutely illegal. Therefore, he had no authority under the law to retain the post of BPS.19.

' As far as the judgment in the case of Mushtaq Ahmad Mohal and two others v. Hon'ble Lahore High Court, Lahore and others (1997 SCM R 1043) is concerned it is fully applicable in principle on the controversy involved in the instant case.

' Because the appointment of petitioner as Deputy Director B-18 was contrary to Services Regulations, therefore, his subsequent absorption and promotion in Grade-19 was not sustainable, thus, under these circumstances learned Single Judge of Lahore High Court rightly issued the writ as prayed for by respondent No.3. Similarly impugned judgment passed by I.C.A. Bench of Lahore High Court admits no interference being unexceptionable in view of the discussion made hereinabove.

' Thus petition merits no consideration, therefore, dismissed and leave to appeal is refused.