Dr. AZIM-UR-REHMAN KHAN ME0 vs GOVERNMENT OF SINDH and another

' JAVED IQBAL, J.--- This appeal with. Leave of the Court is directed against the judgment, dated 27- 1-2000 passed by the learned High Court of Sindh whereby the Constitutional petition preferred on behalf of appellant has been dismissed.

2. Leave to appeal was granted by this Court vide order, dated 19-12-2000 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "Respondent No,2, Mst. Farzana Saleem; was an employee of Punjab Government, and she had served as Assistant Professor (BPS-18) in the Punjab Education Department. She was transferred to Sindh on deputation and was posted as Director in Women Development Department, Government of Sindh. During her deputation, she applied for permanent absorption, but her request was turned down vide order, dated 20-8-1997. It is alleged that she exerted political pressure and succeeded in setting herself absorbed in Government of Sindh. Vide notification dated 19-2-1998.

2. The petitioner, who is a Section Officer in Service and General Administration Department, Government of Sindh, filedConstitutional Petition No,D-1005 of 1999, before High Court of Sindh, challenging the respondent No,2's absorption as above. The petition was dismissed mainly on two grounds; firstly. It was not maintainable in view of Article 212 of the Constitution of Islamic Republic of Pakistan; Secondly, the petitioner has no locus standi to impugn the absorption of respondent No,2 as he is not an aggrieved person. It was also held that petitioner misconducted himself by taking out the record surreptitiously of the Service General Administration Department.

3. Leave to appeal is granted, inter alia, to consider the following:--

(i) Whether the Constitutional jurisdiction can be exercised when the nature of the appointment by itself in dispute, as the terms and conditions of service flow from the nature of the appointment?

(i) Whether in case of writ of quo warranto challenging the legal authority of holder public office, it was essential for the appellant to have a locus standi to file a writ?

(iii) Whether the appellant was guilty of misconduct by using the documents of the Service and General Administration Department without permission by the concerned authority?"

3. Mr. M.M. Aqil Awan. Learned Advocate Supreme Court entered appearance on behalf of appellant and mainly contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned High Court which resulted in serious miscarriage of justice. It is argued that the order of absorption was passed in an unlawful manner by the Competent Authority which was not competent to pass such an order. It is argued with vehemence that it is not necessary for the appellant to have locus standi to file a writ of quo warranto challengingthe legal authority of holder of public office which aspect of the matter has been ignored by the learned High Court causing serious prejudice against the appellant. It is next contended that the learned High Court of Sindh has passed structure against the appellant for invoking the Constitutional jurisdiction by observing that appellant has committed breach of trust by producing certain documents to which he had access being Section Officer in Service and General Administration Department which were uncalled for as writ of quo warranto could have been filed by any person irrespective of the fact whether he is person aggrieved or otherwise. It is argued that the documents produced by the appellant were neither confidential nor privileged and therefore, the question of breach of trust does not arise.

4. Qazi Khalid Ali, learned Additional Advocate-General, Sindh appeared on behalf of the Government of Sindh (respondent No,1) and Mr. Manzoor Ali Khan, learned Advocate Supreme Court for Mst. Farzana Saleem (respondent No,2) and supported the judgment impugned for the reasons contained therein.

5. We have carefully examined the respective contentions as agitated on behalf of appellant and for respondents in the light of relevant provisions of law and record of the case. Learned Advocate Supreme Court on behalf of appellant when asked at the outset that what locus standi the =appellant had to file such a petition and how he was an aggrieved person? No plausible justification could be furnished except that it was a writ of quo warranto which could have been filed by the appellant. It is well-settled by now that "under Article 199 all the reliefs obtainable under it are purely discretionary and on the principles governing writs of quo warranto the relief under Art.199(2)(b)(ii) is particularly so. Quo warranto' is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the relator. No precise rule can be laid down for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto. All the circumstances of the case taken together must govern the discretion of the Court.

The discretion has to be exercised in accordance with judicial principles. The writ is not to issue as a matter of course on sheer technicalities on a doctrinaire approach." Federation of Pakistan v.

Muhammad Saifullah Khan PLD 1989 SC 166, Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996, Azizur Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236 and Hari Shankar v.

Sukhdeo Prasad AIR 1954 All.

227. There is no cavil with the proposition that in respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub-clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority. In this regard we are fortified by the dictum laid down in the following cases:- ' M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244. M.U.A. Khan v. M. Sultan 1981 SCMR 74, Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 and Federation of Pakistan v. Muhammad Saifullah Khan 1998 SCMR 1996.

6. It, however, must not be lost sight of that, grant of relief in writjurisdiction irrespective of its kind, is discretionary which is required to be exercised judiciously but the High Court would be fully D competent while exercising such discretion to test the bona fides of the relator to see if he has come with clean hands. In this regard reference can be made to Federation of Pakistan v.

Muhammad Saifullah Khan PLD 1989 SC 166 and Federation of Pakistan v. Muhammad Saifullah Khan 1989 SCMR 1996. In case it is determined that the appellant had approached the Court with ulterior motive, mala fide intention and as an E instrument of others, the relief can be declined. If any authority is needed reliance can be placed on A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah.227 (FB). After having perused the entire record we are of the considered opinion that High Court cannot issue writ in the nature of quo warranto by removing a person from public office. The incumbent, did not suffer from any disqualification to hold a public office or to warrant removal from such office because issue of qualification relates to terms and conditions of service which aspect of the matter fell exclusively within the jurisdictional domain of Service Tribunal. It is noteworthy that a few affected persons had already approached the Service Tribunal for the redressal of their grievances. Admittedly the appellant has not been affected in any manner whatsoever due to the said absorption. In our view invocation of Constitutional jurisdiction was not only mala fide but amounts to blackmailing and harassment. It is to be noted that Mst. Farzana Saleem, Director Women Development Department, Government of Sindh (respondent No,2) is already before the Service Tribunal to answer the question qua her absorption. Had the appellant not been Section Officer of Service and General Administration of Department this all could not have been done by him. He had all the access to relevant record including the confidential one which was procured by misusing his authority without having any prior approval of the Competent Authority which can be termed as a classic example of misuse and abuse of authority which must not escape unnoticed. The learned High Court has rightly observed that "Dr. Azizur Rehman Meo, is a Sindh Government employee, posted as Section Officer in Service and General Administration Department and, taking advantage of this posting, he has taken out the documents and record and has used the same in this petition, as well as in the previous petition filed by him. In the previous petition, he also produced and used a summary prepared for the Chief Minister. He had no legal authority to take out these documents from the record and his conduct ex facie, amounts to breach of trust and violation of the Government Servants (Conduct) Rules. It is for the Government of Sindh to consider whether such a person is fit for posting at a place where he has access to the Government record. The petitioner is an employee of the Government of Sindh and by taking out record from the office unlawfully, he is filing petitions alleging that the Government of Sindh is acting in violation of law, and that too not in a case where his rights are affected. This also, ex facie.Amounts to misconduct on his part. While endorsing the above reproduced view of the High Court the Chief Secretary Government of Sindh is hereby directed to initiate disciplinary action against appellant for grave misconduct which shall be finalized within a period of two months, report whereof be sent to the worthy Registrar of this Court to be placed before the Honourable Judges in Chambers for their perusal and information.

' For the foregoing reasons the appeal being devoid of merits is dismissed with no order as to costs.