Present
1)
Mr. Justice Syed Hasan Azhar Rizvi.
2)
Mr. Justice Arshad Hussain Khan
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Mudasar Zawar
& Another - - - - - - - - - - - - -
- - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Zaheeruddin Qamar
& Another
- - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Waseem Qadeer
& Another - - - - - - - - - - - - -
- - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Saleem Shaikh
& Another - - - - - - - - - - - - -
- - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Sabit Ali shah & Another - - - - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Jamil Ahmed Khan & Another - - - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Muhammad Faisal Rashid &
Another - - - -
- - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Abdul Asif &
Another - - - - - - - - - - - - - - - -
- - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Atir Mehmood
& Another - - - - - - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Aijazul Hassan & Another - - - - - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Javed Akhtar
Qazi & Another- - - - - - - - - - - - - - - Respondents
Arbab Imtiaz Khan - - - - - - - - - - - - - - Petitioner
Versus
Azeem Alam
& Another - - - - - - - - - - - -
- - - - - Respondents
Date of hearing: 27.03.2018,
10.04.2018, 17.04.2018, 26.04.2018,
09.5.2018, 16.5.2018 & 24.05.2018.
Date of
judgment: 17.08.2018.
Petitioner. In person
Mr. Abdul Asif, Respondent in C.P. No.D-602/2010 and Mr. Zaheeruddin Qamar, Respondent in C.P. No.348/2010 are present in
person.
Mr. Miran Mohammad Shah, Additional Advocate
General, Sindh.
J U D G E M E N T
SYED
HASAN AZHAR RIZVI, J:- All the above twelve
constitutional petitions in the nature of quo warranto
have been filed by Arbab Imtiaz Khan, an employee of
High Court of Sindh against different employees of High Court of Sindh. Out of
the of above twelve constitutional petitions, nine constitutional petitions
bearing No.D-347, 348, 349, 350, 351, 352, 353, 602,
and 604 of 2010 were dismissed by this Court vide common judgement dated
12.03.2011 (announced on 14.03.2011), which judgment was assailed by the
petitioner before the Hon’ble Supreme Court of Pakistan and the Hon’ble Supreme
Court vide common order dated 06.01.2016 passed in C.A.No.169-K,
170-K, 171-K, 172-K, 173-K, 174-K, 175-K, 176-K and 177-K of 2011 partly allowed such appeals and remanded
the above nine constitutional petitions to this Court for deciding the same in
terms of the provisions of Article 199(1)(b)(ii) of the Constitution of the
Islamic Republic of Pakistan, 1973. After the above remand order, three more
identical petitions bearing No.D-1822/2012, 711/2014
and 712/2014 which were already pending in this Court, were also fixed and
heard alongwith the above nine constitutional petitions. As such, all above
twelve constitutional petitions are being heard and decided by this common
judgement.
2. It
will be advantageous to reproduce the order dated 06.01.2016 passed by the
Hon’ble Supreme Court in the above matter as under:-
“ The
appellant who is an employee of the Sindh High Court (the Court) primarily
being aggrieved of certain promotions and/or appointment orders of the private
respondents who are also in the employment of the Court alleging those to be detrimental
to his rights filed constitutional petitions which have been dismissed
basically on the ground that a writ cannot be issued against the High Court in
terms of the law laid down in Asif
Saeed Vs. Registrar, Lahore High Court and others (PLD
1999 Lahore 350) as upheld by this Court by virtue of the law declared
in Muhammad Iqbal and others Vs.
Lahore High Court through Registrar and others (2010 SCMR
632). The appellant, who appears in person, by relying upon paragraph No.10 of this Court’s judgment (supra) i.e. “in the instant case the scenario would have
been altogether different if the appointment had been challenged by someone
seeking a writ of quo warranto”, submitted that
his petition was a composite case seeking enforcement of his service rights and
also a quo warranto writ against the private
respondents by challenging their appointment as having been made otherwise than
in accordance with law, and the said respondents were very much a party to the
petition and this aspect of the matter has not been taken into consideration by
the learned High Court, as the Court was overwhelmed only by the law laid down
in the two judgements (supra) that a writ cannot at all be issued against a
High Court, whereas in the facts and circumstances of the case the learned High
Court was a pro-forma/proper party whereas the necessary relief in fact has
been claimed against the private respondent. Having considered the contention, we by making a
clear declaration that a writ with regard to the enforcement and implementation
of the terms and conditions of service by the appellant against the Court was
absolutely incompetent in view of the law laid down in Muhammad Iqbal (supra) therefore to this effect the writ has been
rightly dismissed, however as regards the quo warranto
part of the petition that aspect fell within the exception of the quoted
judgment and therefore, the writ petitions should have been considered to be
quo warranto petitions simplicitor
and decided accordingly.
2. In
view of the above, we partly allow these appeals and by holding that the writ
petitions filed by the appellant to the effect of being quo warranto
in nature shall be deemed to be pending before the learned High Court and the
matter be decided as to whether the private respondents are holding a public
office under valid authority of law in terms of the provisions of Article
199(1(b)(ii) of the Constitution of Islamic Republic
of Pakistan, 1973.”
3. We
have heard the arguments of petitioner Arbab Imtiaz
Khan appearing in person in all the above-numbered petitions, Mr. M. M. Aaqil Awan, Senior counsel on behalf of the respondents as well
as the arguments of private respondent
Abdul Asif, in person in C.P.No.D-602/2010 while
private respondent Zaheeruddin Qamar
appearing in person in C.P.No.D-348/2010.
4. Petitioner
Arbab Imtiaz argued that he has filed the
constitutional petitions in the nature of quo warranto
wherein he has not made any prayer for self, thus, according to him the
petitions are maintainable. The petitioner who appeared in person
after giving brief facts of the case has argued that the respondent No.1 in C.P. No.D-347/2010
has admitted that there are only three grounds on which a wirt
of quo warranto can be issued to holder of a public
office i.e. (i) The respondent has been appointed to the public office by
incompetent authority; (ii) The respondent does not possess the qualification
prescribed for holding such public office, and (iii) The respondent has been
appointed to public office in abuse of the procedure prescribed by law.
Petitioner argued that his case is that the private respondents have been
appointed to public office in abuse of the procedure prescribed under Rule 7 of
the Sindh High Court Establishment (Appointment and Conditions of Service)
Rules, 2006 and the method of appointment as provided in Rule 5 and the mode of
appointment as provided in the Schedule thereto. Petitioner contended that no
Promotion Committee recommendations were made and the principle of
seniority-cum-fitness was not followed. Petitioner referred to Rule 14 of the
Rules of 2006 and contented that no Seniority lists have been maintained /
prepared with respect to these posts till date. He submitted that in this
regard there is clear admission on the part of respondent No.1
in C.P. No.D-347/2010.
Petitioner contended that in all these petitions appointment by promotions were
made in clear violation of the provisions of Rule 7 of the Rules of 2006, rather the private respondents were given out of turn
promotions for which there is no provision in the Rules, 2006. On the contrary,
he contended that out of turn promotions have been declared by the Hon'ble
Supreme Court of Pakistan to be un-constitutional and un-Islamic. Petitioner
has placed reliance on the cases of GHULAM SHABBIR AND OTHERS vs. MUHAMMAD
MUNIR ABBASI AND OTHERS [2011 PLC (CS) 763], CAPT. (RETD.)
MUHAMMAD NASEEM HIJAZI vs.
PROVINCE OF SINDH AND OTHERS (2000 SCMR 1720),
MUHAMMAD DIN vs. GOVERNMENT OF NWFP AND OTHERS [1997
PLC (CS) 1086], DR. PIRZADA JAMALUDDIN
A. SIDDIQUI vs. FEDERATION OF PAKISTAN AND OTHERS [2012 PLC (CS) 996],
GOVERNMENT OF NWFP vs. MUHAMMAD TUFAIL
KHAN (PLD 2004 SC 313) and in Re: TARIQ AZIZUDDIN AND OTHERS (2010 SCMR
1301.
5. Petitioner next contended that appeals
filed by him before the apex Court were allowed vide order dated 06.01.2016,
set aside the impugned judgment and remand the case to this Court to decide as
to whether the private respondents are holding a public office under valid
authority of law in terms of Article 199(1)(b)(ii) of
the Constitution of Pakistan, 1973. He argued that the question of holding
public office has already been decided by the Hon'ble Supreme Court vide the
remand order as the remand order was delivered by the Hon'ble Supreme Court
while in clear knowledge that the private respondents are holding various posts
in the High Court of Sindh, which clearly shows that if the Hon'ble Supreme
Court was of the opinion that the posts held by the private respondents were
not public offices then the appeals filed by him would have been dismissed and
after the remand order it does not seem proper to agitate that private
respondents are not holding offices as the question raised by the Hon'ble
Supreme Court in the remand order is very clear that the private respondents
are holding public offices. In support
of his contention he made reference to the case of CH. MUHAMMAD AKRAM vs. REGISTRAR,
ISLAMABAD HIGH COURT AND OTHERS [PLD 2016 SC 961] and
submitted that the Hon'ble Supreme Court declared the appointments of officers
holding different posts in violation of the rules as illegal and void. He also
made reference to the case of SUHAIL BAIG NOORI vs. HIGH COURT OF SINDH
THROUGH REGISTRAR & 2 OTHERS [2017 PLC (CS) 1142) and submitted that this
Court allowed the petition by holding that the post held by Mr. Sherwani is a public office, so also observed that every
office created by law / statute is a public office. He submitted that the posts
in the High Court of Sindh were created pursuant to rules made while exercising
power under Article 208 of the Constitution.
6. Mr. M. M. Aaqil Awan,
learned senior counsel drew our attention to order dated 23.04.2010 passed in
the above constitutional petitions (remanded matters) whereby the petitioner
was asked to satisfy this court as to how the petitions are maintainable as
there is remedy available in law which he has not availed. The learned senior
counsel also laid much emphasis on the reply of the petitioner to the above
query whereby the petitioner stated that the remedy of approaching the Tribunal
for Sindh Subordinate Judiciary Service Tribunal was not efficacious as
according to him the pace of the decision of the cases in Tribunal is slow. In
the circumstances, the learned senior counsel argued that this reply of the
petitioner is an indirect admission that the petitioner is an aggrieved and
interested person while he has filed the present petitions in the nature of quo
warranto. On merits, the learned counsel submitted
that although in the notifications of most of the respondents, the words “promoted/ appointed” have been used which
should not be considered as mostly the respondents were already working in the
same grades prior to their impugned notifications which can only be treated as
transfer or absorption in the said grades. In support of his submission,
learned senior counsel has placed reliance upon the cases of ABDUL GHAFOOR vs. NATIONAL HIGHWAY AUTHORITY (2002 SCMR 574), DR.
AHMAD SAlMAN WARIS vs. DR.
NAEEM AKHTAR (PLD 1997 SC
382), CHAUDHRY MUHAMMAD SADIQ
vs. MUHAMMAD NAWAZ & OTHERS (1980 CLC 952), BUSHRA ASHIQ vs. MUHAMMAD ASLAM
(1989 MLD 1351), MUHAMMAD LIAQUAT
MUNEER RAO vs. SHAMSUDDIN [2004 PLC (CS) 1328], IBRAR
HASSAN vs. GOVERNMENT OF PAKISTAN (PLD 1976 SC 315),
GOVERNMENT OF PUNJAB vs. MOBARIK ALI KHAN (PLD 1993 SC 375), REGISTRAR SUPREME COURT OF PAKISTAN vs. QAZI WALI MUHAMMAD (1997 SCMR 141), MUHAMMAD AZAM DAVI vs. SPEAKER BALUCHISTAN PROVINCIAL ASSEMBLY (2010 SCMR 1886) and MUHAMMAD MUBINUS
SALAM & OTHERS vs. FEDERATION OF PAKISTAN (PLD
2006 SC 602).
7. Respondent
Abdul Asif in C.P.No.D-602/2010
argued that the petition of quo warranto is not maintainable as it is
between the employees of this Court and the petitioner had the remedy under
Rule 21 of the Sindh High Court Establishment Rules, 2006 and thereafter of
approaching the Sindh Subordinate Service Tribunal. To substantiate his contention
he referred to the judgments reported in the cases of DR. AZIMUR
REHMAN KHAN MEO vs. GOVERNMENT OF SINDH AND ANOTHER (2004
SCMR 1299), BUSHRA ASHIQ vs. MUHAMMAD ASLAM (1989 MLD
1351), MUHAMMAD LIAQUAT MUNEER
RAO vs. SHAMSUDDIN [2004
PLC (CS) 1328], SAJID HUSSAIN vs. SHAH ABDUL LATIF
UNIVERSITY, KHAIRPUR AND 4 OTHERS (PLD 2012 Sindh 232),
CH. MUHAMMAD AKRAM vs. REGISTRAR, ISLAMABAD HIGH COURT AND OTHERS (PLD 2016 SC 961) and MUHAMMAD HANIF
ABBASI vs. JAHANGIR KHAN TAREEN AND OTHERS (PLD 2018 SC 114) in
which, according to him, the writ of quo warranto was
requested but the Supreme Court and this Court declined to issue such writ
primarily on the ground that the same were filed by employees against the
employees. He also referred to the case of SALAHUDDIN AND 2 OTHERS vs. FRONTIER
SUGAR MILLS & DISTILLERY LTD. AND 10 OTHERS (PLD
1975 SC 244) to argue that he is not holding any ‘public office’ as he was only
performing secretarial duties therefore he submitted that he was not vested
with some portion of the sovereign functions, which, according to him, is the
basic requirement of ‘public office’.
8. Zaheeruddin Qamar, respondent in C.P. No.D-348/2010 has adopted
the arguments advanced by respondent Abdul Asif.
9. Petitioner in reply to the arguments of
the respondents has contended that all the objections raised by the private
respondents have been answered by the remand order itself. He further submitted
that respondents have tried to create an impression that he was unable to meet
the query raised in the order dated 23.4.2010. In this regard he has submitted
that no chance was given to him to answer the query. He submitted that it is
settled law that if an alternate remedy is not efficacious petition will lie.
10. Petitioner in response to the arguments
of Mr. M. M. Aqil Awan,
learned counsel for the private respondents that the private respondents have
not been promoted but they were appointed by transfer and as such there was no
need for obtaining recommendation of the Promotion Committee under Rule 7 of
the Rules, 2006, has submitted that promotion and transfer are two different
things. While promotion is a vertical movement i.e. when an employee is
appointed to a post which is higher than the post earlier held by him; transfer
is lateral movement where one employee is transferred from one post to another
post of equal basic pay scale. Thus, for determining the question of promotion
and transfer it is to be seen whether the movement is from a post of lower rank
to a post of higher rank or from one post to another post in equal rank. He
submitted that initially the post of Private Secretary was in B-17 and then it
was upgraded to B-18, while the post of Secretary to Chief Justice and Deputy
Registrar were in B-18 and then they were upgraded to B-19. Therefore, any
appointment of a Private Secretary in B-17 or B-18 to that of Secretary to
Chief Justice or Deputy Registrar in B-18 or B-19,
would be promotion and the same cannot be termed as transfer and
recommendations of the Promotion Committee were mandatory. He further submitted
that though the grant of selection grade involves financial benefits but does
not mean promotion from a lower post to higher post. Petitioner submitted that
he is also in B-19 but he is in selection grade B-19 as he is still holding a posts in B-18 and not a post in B-19 on regular basis. He,
therefore, submitted that the appointments can only be made in the way as
prescribed by Rules, 2006. Petitioner submitted that the only prayer made in
these petition is to the effect that private respondents may be called to show
under what authority of law they are holding public offices and this prayer can
only be granted by this Court in exercise of power conferred under Article
199(1)(b)(ii) of the Constitution. Since there is no other forum which the
prayer made in these petitions can be sought and no other forum/court/ tribunal
is competent to grant such prayer, therefore, the
petitioner approached this Court for issuance of writ of quo warranto.
11. In response to the arguments of Mr. Asif
that a co-worker / aggrieved person cannot file a writ of quo warranto, he submitted that it is not necessary that a
person filing quo warranto must be aggrieved. He also
submitted that the Hon'ble Supreme Court at Page 1303 of the Meo’s case was held that a bona fide of the relator could
be tested to see whether he has come to the Court with clean hands. He
submitted that since Meo was not an aggrieved person
therefore it was held that he has filed the petition with ulterior motives and
with mala fide intention. No question of co-worker was involved in this
petition nor it was held by the apex Court that co-worker cannot file a writ of
quo warranto. As regards to the case of Muhammad Liaquat Munir Rao,
he urged that in this case the Chairman of the Agricultural Prices Commission
was having a grudge against an officer of the Commission and the Chairman used
his driver as a puppet, as such the Hon'ble Supreme Court held that the growing
tendency to institute writs of quo warranto with
oblique consideration or motives and just like puppets is to be deprecated by
the Courts. He submitted that he is not puppet of any other person therefore
bow before this observation. In response to the case law reported in PLD 2018 SC 114 upon which reliance has been placed by Mr.
Asif, he submitted that in this case the Hon'ble Supreme Court held that it
should be ascertained if the petition had been filed with some mala fide intent
or ulterior motive and to serve the purpose of someone else and should not be a
tool in the hand of the petitioner who had some personal grudge or score of his
own to settle or were a proxy for someone else who had a similar object or
motive. He further submitted that not a single word has been uttered before this
Court by any of the private respondents that he has any personal grudge or
score to settle against any of the private respondents or that he is acting as
a tool of others. He submitted that his only aim and object for this long
struggle is for the supremacy of law.
12. Having
considered the arguments and case law relied upon by and on behalf of all the
parties as well as after going through the material available on record, we
with utmost respect to the order of Hon’ble Supreme Court of Pakistan
reproduced above would point out that in the earlier judgement dated 12.03.2011
of this Court, the constitutional petitions were dismissed both on merits by
considering the quo warranto part as well as being
not maintainable in view of the judgment of the Hon’ble Supreme Court reported
as Muhammad Iqbal and another v.
Lahore High Court through Registrar and others (2010 SCMR
632). It will be more helpful
here to reproduce the relevant paragraphs/portions of the earlier judgment of
this Court dated 12.03. 2011 dealing with the quo warranto
part as under:-
“16. Learned
counsel next relief upon Dr. Azim-Ur-Rehman Khan Meo’s case
(supra). One Mst
Farzana Saleem was an
employee of Punjab Government, and she had worked as Assistant Professor in the
Punjab Education Department. She was sent to Sindh on deputation and was posted
as Director in Women Development Department. She applied for permanent
absorption, which request was turned down in 1997 and then she it was alleged
exerted political pressure and succeeded in 1998. The petitioner who was
Section Officer in Service and General Administration Department, Government of
Sindh filed writ petition in the High Court challenging the absorption. The
petition was dismissed on two grounds, firstly that it was barred by Article
212 of the Constitution and secondly the petitioner had no locus standi to impugn the absorption. Matter was taken to the
Supreme Court. The Supreme Court observed that one need not be an aggrieved
person for filing a writ in the nature of quo warranto.
On merits the Supreme Court observed that the incumbent did not suffer from any
disqualification so as to warrant her removal from office. Supreme Court also
noted that Meo was not an aggrieved person and that
some aggrieved persons had approached the Service Tribunal. The Supreme Court
also noticed that the Meo taking advantage of his
positing in S&GAD had taken out documents and
record and had used the same in the petition and endorsed view of the High
Court that it was for the government to consider whether such person was fit
for such posting or not and that Chief Secretary be directed to initiate
departmental proceedings. On the point of issue of writ of quo warranto, the Supreme Court observed as under:-
“It is well settled by now that under Article 199 all
the reliefs obtainable under it are discretionary and on the principles
governing writ of quo warranto the relief under Art.199(2)(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 circumstance 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 277.
17……………………………………………………………..
18. The
petitioner in these petitions is working as Private Secretary in the High Court
and a series of petition have been filed by him challenging promotions,
transfers and postings. Obviously it cannot be said that the petitioner is a
disinterested observer merely interested in observing of law and upholding of
Constitution. He being an employee of High Court Establishment is far removed
from such high perch.”
13. Irrespective
of the above position, we keeping in view the remand order of Hon’ble Supreme
Court, heard the arguments in terms of Article 199(1)(b)(ii) of the
Constitution of Islamic Republic of Pakistan, which is reproduced as under:-
Article 199(1) Subject
to the Constitution, a High Court may if it is satisfied that no other adequate
remedy is provided by law
(a) …………………………………………………………………
(i) …………………………………………………………………
(ii) …………………………………………………………………..
(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.
14. Admittedly,
the petitioner as well as all the private respondents are
in the employment of Sindh High Court. This being the position the petitioner
had an adequate remedy available under Rule 21 of the Sindh High Court
Establishment (Appointment and Conditions of Service) Rules, 2006 (which rules
have been framed under the mandate provided under Article 208 of the
Constitution of the Islamic Republic of Pakistan) to file/seek review before
the Hon’ble Chief Justice of this Court, which remedy he did not avail. Even
thereafter, the petitioner had the second remedy of approaching Sindh Subordinate
Judiciary Service Tribunal in view of section 2(bb) of the Sindh Service
Tribunals Act, which is reproduced as under:-
“2(bb) “member of the subordinate judiciary” means a
District and Sessions Judge, Additional District and Sessions Judge, Senior
Civil Judge and Assistant Sessions Judge, Civil Judge and Judicial Magistrate
and includes an officer and servant of the High Court or any employee working
under the administrative control of the District and Sessions Judge wherever he
may be”
15. The Hon’ble Supreme Court in the case of I.A. Sherwani and others v. Government of
Pakistan and others (1991 SCMR 1041 at page 1063 has
held as under:-
“…However we may clarify that a civil servant cannot
bye-pass the jurisdiction of the Service Tribunal by adding a ground of
violation of the Fundamental Rights. The Service Tribunal will have
jurisdiction in a case which is founded on the terms and conditions of the
service even if it involves the question of violation of the Fundamental
Rights…”
16. We
would also like to refer to the order dated 23.04.2010 passed in the above
constitutional petitions (remanded matters) whereby the petitioner was asked to
satisfy this court as to how the petitions are maintainable as there is remedy
available in law which he has not availed, in reply thereof, the petitioner
stated that the remedy of approaching the Tribunal for Sindh Subordinate
Judiciary Service Tribunal was not efficacious as according to him the pace of
the of the decision of the cases in Tribunal is slow. In the same order, this
court observed that this is hardly a ground to avail remedy in constitutional
jurisdiction of this Court. The above reply of the petitioner that the pace of
the decision in the Tribunal is slow itself establishes that the petitioner is
an aggrieved and interested person in filing the present petitions in the
nature of quo warranto, which factum further finds
support from the remand order dated 06.01.2016 of the Hon’ble Supreme Court of
Pakistan, the relevant portion dealing with such position, is again reproduced
as under:-
“The appellant who is an employee of the Sindh High
Court (the Court) primarily being aggrieved of certain promotions and/or
appointment orders of the private respondents who are also in the employment of
the Court alleging those to be detrimental to his rights filed constitutional
petitions”
17. The
above observation of the Supreme Court as well as the above reply of the
petitioner in response to the order dated 23.04.2010 that the pace of the
decision in tribunal is slow nullifies his contention that in the present
petition he has not made any prayer for self. We would also like to mention
here that if anyone makes a so-called claim of no self prayer for him in a
petition of quo warranto, he in fact tries to divert
the attention of the Court because no one can even make a prayer for self in
quo warranto because the prayer of quo warranto is itself provided under clause (ii) of Article
199(1)(b) which is to the effect “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”. The other point is that if someone makes an
additional prayer alongwith the prayer of quo warranto,
this becomes a case of collateral proceedings and collateral proceedings cannot
be brought/taken into consideration in a quo warranto petition. If
any authority is required on this issue, the same is available in the
case reported in PLD 2002 SC 853 at page 927
(9-Member Bench decision), the relevant portion is reproduced as under:-
“73………….It is well-settled that a writ of quo warranto cannot be brought through collateral attack. Such
a relief has to be claimed directly”
18. We
would also like to refer to PLD 1976 SC 315 at page
351 wherein it is held as under:-
“…It is also important to observe that quo warranto has never been a writ of right. The court may in
exercise of its discretion, refuse it, if the application is not bona fide or
is made for a collateral purpose”.
19. The
case law relied upon by the petitioner are mostly in respect of service matters
and not on the point of quo warranto, hence they are
of no help to the petitioner.
20. Coming
to the provisions of Article 199(1)(b) which permits the High Court to make an
order on the application of any person, we would refer to the meaning of
any person as appearing in PLD 1975 SC 244 at page 258 wherein it is
held by the Supreme Court as under:-
“……. The reason for enabling ‘any person’ as distinguished from an ‘aggrieved party’ to apply
for a writ of quo warranto is that the inquiry
relates to a matter in which the public are interested, namely legality and
sanctity of the public office, and not
the enforcement of individual rights or redress of individual grievances.
21. Thus
the petitioner being aggrieved and
having efficacious remedy as well as being interested person cannot maintain
the present petitions in the nature of quo warranto
which can only be maintained by a disinterested person.
22. Coming
to the provisions of Article 199(1)(b)(ii) regarding public office, we may refer to the definition of public office as defined by the Hon’ble
Supreme Court of Pakistan in PLD 1975 SC 244 at
page 258 to 259, which is as under:
“ The
term ‘public office’ is defined in Article 290 of the Interim Constitution as
including any office in the Service of Pakistan and membership of an
Assembly. The phrase ‘Service of Pakistan’ is defined, in the same Article, as
meaning any service, post or office in connection with the affairs of the
Federation or of a Province and includes an All-Pakistan Service, any defence
service and any other service declared to be a Service of Pakistan by or under
Act of the Federal Legislature or of Provincial Legislature but does not
include service as a Speaker, Deputy Speaker or other member of an Assembly.
Reading the two definitions together, it becomes clear that the term ‘public
office’ as used in the Interim Constitution is much wider than the phrase
‘Service of Pakistan’, and although it includes any office in the Service of
Pakistan, it could not really refer to the large number of posts or
appointments held by State functionaries at various levels in the hierarchy of
Government. As early as 1846, the House of Lords in Henry Farran
Darley v. Reg(6) expressed the view that “a proceedings by information in
the nature of quo warranto will lie for usurping any
office, whether created by Charter of the Crown alone, or by the Crown with the
consent of Parliament, provided the office be of a public nature and a
substantive office and not merely the function or employment of a deputy or
servant held at the will and pleasure of others”. Their Lordships held the
office of Treasurer of the public money of the county of the city of Dublin to
be an office which for which an information in the nature of a quo warranto would lie. In other words, their Lordships
excluded, from the purview of the term ‘public office’ the large number of
servants of the Crown who were not holding any statutory, representative or
elective office.
This
view seems to have held the ground throughout. As summed up by the Ferris
(Extraordinary Legal Remedies, 1926 Edition, P.145),
“a public office is the right, authority and duty created and conferred by law,
by which and individual is vested with some portion of the sovereign functions
of the Government to be exercised by him for the benefit of the public, for the
term and by the tenure prescribed by law. It implies a delegation of a portion
of the sovereign power. It is a trust conferred by public authority for a
public purpose, embracing the ideas of tenure, duration emolument and duties. A
public officer is thus to be distinguished from a mere employment or agency
resting on contract, to which such powers and functions are not attached…..The
determining factor, the test, is whether the office involves a delegation of
some of the sovereign functions of Government, either executive, legislative or
judicial, to be exercised by the older for the public benefit. Unless his
powers are of this nature, he is not a public officer”
23. The
above definition has also been quoted by this Court in the judgement reported
in PLD 2012 Sindh 232 and this court thereafter
observed that the phrase “public office” is no longer defined in Article 260 of
the Constitution of Islamic Republic of Pakistan, 1973 as it was defined under
the Interim Constitution, 1972 and further observed that irrespective of this,
the determining factors and the test stated by the Supreme Court will hold the
field and they are: the office must involves delegation of sovereign functions
of the Government either executive, legislative or a judicial to be exercised
by the holder for the public benefit.
24. Referring
to the case of SOHAIL BAIG NOORI vs. THE HIGH COURT OF SINDH THROUGH REGISTRAR AND 2 OTHERS
[2017 PLC (CS) 1142]
wherein quo warranto writ was issued
against the Chairman Inspection Team of this Court, we may observe that the
Bench deciding the said matter discussed the nature of job of Chairman
Inspection Team (which were found to be executive in nature) and only
thereafter came to the conclusion that the office of the Chairman Inspection
Team is a Public Office.
25. Out of
the above twelve constitutional petitions, in seven constitutional petitions
bearing No.D-347, 348, 352, 602 of 2010 as well as
1822/2012, 711/2014 and 712/2014 the private respondents were appointed/promoted
either as “Secretary to Chief Justice” or “Private Secretary to Chief Justice”
or “Secretary to Senior Puisne Judge”, which shows that they were just
performing secretarial duties and were not vested with some portion of the
sovereign function, either executive, legislative or judicial, thus we are
clear in mind that these respondents were not holding any public office. Regrading the other four constitutional petitions
bearing No.D-349/2010, 350/2010, 351/2010, 353/2010
and 604/2010, we may observe that these respondents were appointed/promoted on
different posts of officers but their post/offices are not substantive offices
as they are performing duties which are tranferable
from one post to another therefore they were also not vested with some
portion of the sovereign function, either executive legislative or judicial hence
they were also not holding any public
office. Even otherwise, the
petitioner miserably failed to point out as which sovereign functions any of
the private respondents was/is performing.
26. Reverting back to the judgment of
this Court in the case Mr. Zafar
Ahmed Khan Sherwani (supra), we may observe that such
petition of quo warranto was filed by an Advocate who
had no adequate remedy and who was absolutely a disinterested person whereas
the present petition of quo warranto has been filed
by an employee of this Court, who had an adequate remedy available, against
certain employees of this Court and who is an aggrieved and interested person as observed in above paras, hence the present case is distinguishable from the
case of Sohail Baig Noori (supra) including on the point of ‘public office’ as
discussed above.
27. We are
therefore of the view that even if we were to hold for the sake of arguments
only that the respondents are holding public office, it is not a fit case for
issuance of a writ of quo warranto as there seems to
be personal dispute between the petitioner and the respondents as to the
appointment/promotions to the above posts. If we were to issue such a writ, the
employees in order to settle the disputes as to promotions/ appointment inter
se between them, may press into service the relief of quo warranto
either directly or indirectly (through some other hired employees), which will
not be in the interest of the smooth functioning of the service structure and
will ultimately result in bypassing the remedies available under the various
statutes and tribunals making them redundant and purposeless, which cannot be
approved.
28. We would also like to observe that in
the above remand order passed in this matter by the Hon’ble Supreme Court, the
3-member bench has quoted with approval the judgments reported in Asif Saeed Vs. Registrar, Lahore High
Court and others (PLD 1999 Lahore 350)
and Muhammad
Iqbal and others Vs. Lahore High Court through Registrar and others (2010 SCMR 632) to the extent that a writ cannot be issued
to the High Court against its administrative orders whereas both the said
reported judgments have been subsequently declared as per incuriam
and not a good law by another three 3-Member bench of the Hon’ble Supreme Court
in the case reported in Ch. Muhammad Akram vs. Registrar, Islamabad
High Court and others (PLD 2016 SC 961) by holding that writ against the
administrative orders of the High Court can be issued. Even otherwise, copy of
an order dated 07.02.2018 passed by the Hon’ble Supreme Court in Civil
Petitions No.4312-4317 of 2017 and other matters has
been placed on record, whereby the point of “issuance of writ against the
administrative orders of High Court” is being revisited and reconsidered by the
5-Member Bench of the Hon’ble Supreme Court of Pakistan. As such, we will not
go in this controversy, as the present matter is to be decided as per the
remand order of the Supreme Court in which it is categorically held that the
petitioner’s writ to the extent it was against the High Court for enforcements
of service right has been rightly dismissed while matter is to be decided as
quo warranto in terms of Article 199(1)(b)(ii) of the
Constitution having fallen under the exception of the above judgements i.e. PLD 1999 Lahore 350 and 2010 SCMR 632.
29. We may
also like to point out that after the remand order of Hon’ble Supreme Court,
one of the arguments which came under consideration before us was whether the
above definition as given in Section 2(bb) of the Sindh Service Tribunal Act,
1973 to the extent of officers and servants of the High Court is intra vires or
ultra vires. It may be pointed out that in the various judgments of the
superior courts including the Azam Davi’s case 2010
SCMR 1886 it
has been held that the employees of the Supreme Court and High Court are not
civil servants as legislature has not been given any role in respect of their
terms and conditions of service. This poses a question as to when the
legislature has not been given any role in respect of the terms and conditions
of service of the employees of the Supreme Court and the High Court then how
the legislature can frame a clause in any Act/enactment for such employees. The
mandate to frame rules in respect of terms and conditions of service of the
officers and servants of the high court and supreme court
is given/provided to such courts themselves by Article 208 of the Constitution
of the Islamic Republic of Pakistan. Thus we are of the view that the
definition to the extent of “an officer and servant of the High Court” as given
in Section 2(bb) of the Sindh Service Tribunals Act, 1973 is ultra vires as
such the officers and servants of this Court cannot go to the Sindh Subordinate
Judiciary Service Tribunal, but in the above circumstances, when they become
remediless they can file constitutional petition, after seeking the remedy of
appeal or review, as the case may be, in view of Rule 21 of the of the Sindh
High Court Establishment (Appointment and Conditions of Service) Rules, 2006
that too for the same relief as they could avail it before the Sindh
Subordinate Judiciary Service Tribunal i.e. matters regarding terms and
conditions of service, and not a quo warranto.
30. We may
like to observe that it is clearly mentioned in the remand order of the Hon’ble
Supreme Court that the instant petition to the extent it was against the High
Court for enforcement of service right of the petitioner has been rightly
dismissed. Hence this issue need no consideration having already been answered
by the Hon’ble Supreme Court in the remand order.
31. The future difficulty that may arise
is if 5-Member Bench of the Hon’ble Supreme Court before whom the point regarding
the issuance of writ to the high court is under re-consideration comes to the
conclusion that the writ against the administrative orders of the high court
can be issued then the employees of this court (in the absence of any service
tribunal for them) will be free to file constitutional petitions for
enforcements of service rights after availing the remedy under Rule 21 of the
Sindh High Court Establishment Rules, 2006 but if the Hon’ble Supreme Court
decides that no writ can be issued against the administrative orders of the
high court, then filing of the constitutional petition would be a futile
exercise, therefore in such a situation, the Registrar of this Court will place
the matter before the Hon’ble Chief Justice of this Court with the request for adding a provision in
the High Court Establishment Rules, 2006 for constitution of a separate service
tribunal for the employees of the high court for availing the remedy but after
availing the remedy as provided under Rule 21 above, which exercise is expected
to be completed as early as possible preferably within two months and once such
a separate service tribunal for the employees of high court is constituted, all
the pending service matters filed by or against the high court employees in
respect of the terms and conditions of service will be transferred to the said
service tribunal for decision according to law.
32. Upon the above discussion and
observation, we do not find any substance in all the above constitutional
petitions in the nature of quo warranto which are dismissed.
JUDGE
Karachi:
Dated:
.08.2018.
JUDGE
Nasir Lodhi, P.S.