1993 PLP (C (PLC(CS))

2.The petitioner is employed in the Water and Sanitation Agency of Faisalabad Development Authority (hereinafter called the Authority) and is presently holding the post of Assistant Director (Procurement and Stores) in Grade‑

17. The Director‑General of the, Authority vide his order dated 11‑6‑1983 appointed respondent No.l, who by his qualification is a degree holder in Commerce, as Senior Accountant on ad hoc basis in NPS‑16 for a period of six months vide Letter bearing Endt. No. Admn/7903‑05/F.D.A‑

83. Respondent No.l continued to work as Senior Accountant till 21‑3‑1989 when the Director‑General vide his order dated 21‑3‑1989, in compliance with the directions of the Chief Minister, Punjab, dated 9‑3‑1989 appointed him as Deputy Director (Finance), a post in Basic Scale No.18, in the Urban Development Wing of the Authority. This appointment was challenged by means of Writ Petition No.1840 of 1989 by one Fateh Muhammad, who was an Assistant Director (Finance) in the Authority. While the aforesaid writ petition was pending, in pursuance of another directive of the Chief Minister, respondent No.l was appointed as Director (Procurement and Stores), a post in Basic Scale No.19 by order dated 17‑9‑1989 passed by the Director‑General. The writ petition was, however, disposed of by order dated 30‑3‑1991 as having become infructuous because it was found that in the meantime, respondent No.l has resigned and was no longer holding the disputed position. Subsequent to the disposal of Writ Petition No.1840'of 1989, "Starred Assembly Question No.908" was raised on 12‑6‑1991 in the Punjab Provincial Assembly concerning direct induction of respondent No.l in Grade‑19, which was answered by the concerned Minister, inter alia, to the following effect: "So far as rules under which prescribed qualification/requirements for direct induction as Director in Grade‑19 is concerned. It is intimated that Faisalabad Development Authority Appointments and Conditions 'of Service Regulations were approved in June, 1990 conveyed by your Letter No.SO(E‑1)HP and EP‑9‑1/88, dated 2‑6‑1990, so the prescribed qualification/requirements for induction as Director in Grade‑19 cannot be applicable in the appointments made prior to approval of this Appointment and Conditions of Service Regulations." 3 Mr. Abid Hasan Minto, learned counsel for the petitioner, argued that the impugned appointment has been made under the directions of the Chief Minister, Punjab, to accommodate respondent No.l a brother‑in‑law of' Mr. Muhammad Afzal Sahi, a Member of Provincial Assembly of the; Islami Jamhuri Ittehad, notwithstanding the fact that under the Punjab Development of Cities Act (No. XIX of 1976) (hereinafter called the Act), the appointing authority is the Faisalabad Development Authority and the Chief Minister in the purported exercise of his power under section 16 of the Act is not competent to interfere in the matter in any manner whatsoever. It is further submitted that no advertisement was made before making the direct appointment of respondent No.l firstly, in BS‑18 and later in BS‑

19. The Authority in its meeting held on 24‑6‑1978 had decided to adopt the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, for making appointments in the Authority. The impugned appointment being violative of the said rules, is wholly without lawful authority.

4. Ch. Hamid‑ud‑Din, learned counsel for respondent No.l placed reliance on Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), to contend that the writ petition having been filed after a lapse of two years from the date of impugned appointment, the same was liable to be declined. The learned counsel submitted that a writ ‑ of quo warranto would not lie against respondent No.l because the petitioner is acting, a mala fide manner and is fighting for somebody else rather than for himself. In the precedent case, a challenge was made to the offices of the elected members of the Provincial Bar Council inter alia on the ground that the entire election was void as it was convened and conducted by Mr. Jan‑e?-Alam, Senior Government Pleader, Dacca, who illegally assumed jurisdiction as ex officio Chairman of the Council, which office he neither held nor was qualified to hold. The Supreme Court held that the unauthorised presence of Mr. Jan-e‑Alam as the Chairman of the Council in the meetings held in connection with the election did not affect the validity of the decision taken in the meetings in view of the protective provision of section 20 of the Legal Practitioners and Bar Councils Act (III of 1965). As to the scope of quo warranto, it was held: ‑ "Under Article 98(2)(b) (which corresponds to Article 199 (1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, (1973), any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority. On that account it cannot be doubted that Mr. Siraj‑ul‑Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is matter of discretion, wherein 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. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach. In the present case, considering all the circumstances, I cannot escape the feeling that Mr. Siraj‑ul‑Islam is not entirely playing his own game, for his altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition, which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members of the Council was duly notified on the 20th December, 1966. They have been in office discharging their duties since the 1st of January, 1967. The writ petition in the High Court was filed 9 months a later on the 12th of September, 1967. The alleged disqualification of the appellants and the two respondents, which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circumstances, I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court. Mr. Khundker, the learned counsel for the respondents has also contended that since the High Court has exercised its discretion in favour of the respondents this Court should stay its hands and not interfere with that discretion. This Court does not and will not interfere where the High Court has exercised its discretion on sound judicial principles, but it will certainly intervene where it finds that the discretion has been exercised in a manner which diverts the law into wrong channels by the formation of conclusions which are unsustainable in law."

5. The writ in Dr. Kamal Hussain's case was not rejected on the ground of laches simpliciter but because the Court found the conduct of the petitioner therein mala fide. Here the vague allegation that the petitioner is acting in a mala fide' 'manner and is fighting for somebody else rather than for himself is not substantiated on record and' merely on the basis of these vague and indefinite allegations, the writ cannot be thrown away. As regards laches, the impugned appointment was made in September, 1989, while a challenge has already been made to the previous appointment of respondent No.l in Grade‑18 by another person. It was not necessary for the petitioner to file another petition when Writ Petition No.1840 of 1989 having bearing on the controversy raised in this petition was disposed of on 30‑3‑1991 as having become infructuous. Refer Baij Nath Singh v. The State (AIR 1965 Allahabad 151), wherein it was observed that in a case of quo warranto, the occupation of the office illegally gives rise to a cause of action to others daily and persistently and no question of delay arises. In Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another (PLD 1991 Lah. 420), it was held that laches would not generally apply in cases of quo warranto but the Court can ignore the application of this principle if the attendant circumstances are such which militate against the bona fides of the petitioner. The same principle was laid down in Dr. Kamal Hussain (supra), which does not stand in the way of the petitioner. The delay in filing the writ petition has been satisfactorily explained.

6. In early times, the writ of quo warranto was in the nature of a writ of right for the King against any subject, who claimed or usurped any office, franchise, or liberty to inquiry by what authority he supported his claim in order to determine the right. Refer Rex v. Supeyer ((1916) 1 K.B. 595). This was affirmed in ((1916) 2 K.B. 595). Also refer Blackstone's Commentaries 8th Edition, Volume 3 page

262. Later the writ of quo warranto fell into disuse and led to the substitution of proceedings by way of information in the nature of quo warranto. Such information originally related to the Court by Attorney? General and later by the King's coronor uptil state of 9'Ann. c.20 the position was altered and disputes between party and party without the intervention of the prerogative were entertained. The practice later grew to receive information from private relator against a. usurper of a public office and to issue writ of quo warranto if usurpation was proved. Under section 9 of the Administration of Justice (Miscellaneous) Provisions Act, 1938, the practice of laying information in the nature of quo warranto has been abolished in England, and substituted by injunction restraining any person from acting in an office in which he is not entitled to act. Clause (1)(b)(ii) of Article 199 of the Constitution of the Islamic Republic of Pakistan is in the nature of prerogative writ, of quo warranto. There are apparent difference as compared to clauses 1(a)(i) and (ii) and 1(b)(i) and (ii) and 1(c), namely; whereas, under clause 1(a)(i) and (ii) the application must be by "an aggrieved"; under clause (1)(c), the application must be by "aggrieved person"; and whereas under clause 1(b)(ii), the application can be by "any person".. Whose acts or proceedings are called in question, must be a person performing functions in question with the affairs of the Federation, a Province or a Local Authority. Under clause (1)(b)(ii), respondent must be a person holding or purporting to hold a public office. There is no specific mention of the nature of its functions. In Hamid Hasan Nomani v. Banwarilal Roy AIR 1947 P.C. 90, it was held that "an information in the nature of quo warranto is the modern procedure replacing the obsolete High Prerogative writ of quo warranto. It is used to try the civil right to a public office. In Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203), it was held with reference to the monograph on Crown Proceedings in Volume 11 of Halsbury's Law of England," the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to inquire by what authority he supported his claim in order that the right to the office may be determined". It was also observed that issue of writ of quo warranto is discretionary with the Court and that it was necessary for the issue of writ that the office should be one created by the State, by charter or by statute and that the duty should be of a public nature.

7. Ch. Hamid‑ud‑Din, learned counsel for respondent No. 1 argued that appointment of respondent No. 1 as Director has been made by the competent Authority under section 9 of the Act and, therefore, a writ of quo warranto is not competent to probe further into the basis or reasons of appointment which have weighed with such Authority. He further argued that the impugned post of the Director was not a "public office" and in the absence of any statutory rules, the appointment of respondent No. 1 having been made on the principle of `master and servant' by the competent Authority, the writ of quo warranto was not available.

8. Mr. Maqbool Elahi Malik, learned Advocate‑General also supported Ch. Hamid‑ud‑Din. He respectfully submitted that the Authority is a statutory body created under the Act. Section 9 of the Act empowers the Authority to appoint such Officers, advisors, experts, consultants and employees as it considers necessary for the efficient performance of its functions and such terms and conditions, as it may deem fit. He further submitted that under section 8 of the Act, the Authority is competent to delegate any of its powers, duties or functions under the Act to the Director‑General or other authorities specified therein subject to such conditions as it may think fit. In the' instant case, the learned Advocate‑General submitted that this power has been delegated by the‑ Authority to the Director‑General, who was, therefore, competent to appoint respondent No. 1 against the impugned post as Director Finance and the same is not open to challenge by means of a writ of quo warranto. He further submitted that section 43 of the Act; subject to other provisions thereof, empowers the Government to make rules for carrying into effect the purpose of the Act. Section 44 also empowers the Authority to make regulations, as may be necessary to carry out the purpose of the Act and subject to the provisions and the rules made thereunder. In the instant case, however, the Authority had not framed its rules/regulations in, relation to appointment and conditions of service of the employees when the impugned appointment was made and, therefore, respondent No. 1 cannot be regarded as holder of a "public office" when his appointment was made and the relationship between the Authority and its employee at that time was that of `master and' servant'. 8‑A. The question, which needs consideration in the light of respective submissions of learned counsel for the parties is whether at the time of impugned appointment, respondent No. 1 was governed by the rule of `master and servant' in the absence of any rule/regulation made by the Authority under the Act. The answer is in the negative. So far as the power to make regulations is concerned, that has been vested in the Authority itself under section 44 of the Act and it is for the Authority to decide whether to frame or adopt the regulations or rules of the Government relating to recruitment of its employees. In the instant case, the Authority in its meeting held on 19‑9‑1977, decided that rules may be prepared and till such time, the rules are framed/approved, the Government's rules should be followed for conducting the business of the Authority and other purposes. Thus visualised, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were to be followed by the Authority while making the appointments, or promotions etc. till the Authority framed its own rules/Regulations. Here the Authority framed the Regulations called Faisalabad, Development Authority (Appointment and Conditions of Service) Regulations, 1990, under which initial appointments of the posts of Grades‑16 and above were to be made on the basis of examination/test or interview by the appropriate Committee after advertisement in the newspaper. The impugned appointment of respondent No. 1 was made on 17‑9‑1989 and, therefore, its validity cannot be tested on the touchstone of the said Regulations but is to be examined in terms of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which were duly adopted by the Authority and had the force of statutory rules. Any violation of the said rules is, therefore, open to challenge by means of the Constitutional petition. Refer National Bank of Pakistan v. Manzoorul Hasan (1989 SCMR 832), wherein it was held that the bye‑laws framed in respect of service rules of the employees in pursuance of section 32 of the National Bank of Pakistan Ordinance, 1949, were to be treated as statutory rules. Also see Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275). In the precedent case, the Evacuee Trust Property Board by means of a proper resolution adopted the Efficiency and Discipline Rules and, therefore, violation thereof at the instance of an aggrieved employee of a corporate body was held actionable. A similar view was taken in the unreported judgment of the Supreme Court in C.P.S.L.A. No. 645 of 1974, titled the Chairman, Evacuee " Trust Property Board, Lahore v. Noor Elahi and C.P.S.LA. No. 646 titled the Chairman, Evacuee Trust Property Board, Lahore v. Muhammad Ramzan. A passage from the judgment in C.P.S.LA. No. 645 of 1974 has also been quoted in C.P.S.LA. No. 646 of 1974, which reads thus: ‑ "It appears from the order passed by the learned Chief Justice of the High Court on the two Constitutional petitions that the Board at its 6th meeting held in May 1969, passed the following resolution: ‑‑ `Agreed. Central Government Rules would apply to the Board's employees for all intents and purposes.' Under paragraph 43 of the Scheme the Board is authorised to make rules to carry out the purposes of the scheme framed under section 16‑A(1) of the Displaced Persons (Land Settlement) Act, 1958. Paragraph 16 of the Scheme provides that no employee of the Board shall be dismissed or otherwise punished except in accordance with the rules framed by the Board and approved by the Central Government. In our opinion the aforesaid resolution amount to making of the rules by the Board. It was not disputed before the learned Chief Justice that till such time the Board framed its own rules, the employees were governed by the Efficiency and Discipline Rules, 1960, framed by the Central Government. Admittedly, these rules were not followed in the case of the two respondents and, therefore, no fault can be found with the impugned orders of the learned Chief Justice. Both the petitions are accordingly dismissed."

9. It is well‑settled that where the conditions of an employee are governed by the statutory rules, any action prejudicial taken against him in violation thereof is open to scrutiny in the exercise of Constitutional jurisdiction. Where terms and conditions of service of an employee of a corporate body are regulated by instructions issued by the employing body for its own convenience, the rule of `master and servant' is applicable. Refer Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC

170. Reliance was also placed on R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), to contend that the only remedy available to the aggrieved Government servant in such cases is to sue for damages for wrongful dismissal and not a writ of mandamus or certiorari and on the same principle a writ of quo warranto in respect of an employee who is governed by the rule of `master and servant' is not maintainable. There is no cavil with the principle enunciated in the cases of Principal, Cadet College, Kohat and R.T.H. Janjua (supra). However, in determining the question whether any instructions, regulations, directions, bye‑laws, service rules framed by an organisation are in the nature of statutory rules or merely in the nature of instructions issued by the employing body for its own convenience is Jo be judged not on the basis of its mere form or title, but with reference to its substance and the source under which it has been framed. Here as earlier pointed out, the Authority is empowered to frame regulations regulating the terms and conditions of service of its employees and, therefore, adoption of the relevant Government Rules has the force of statutory rules. It is true that the appointment of staff of the Authority and their promotion falls within the exclusive power of the Authority and the officers who have been delegated with such power, but where a person is recruited in violation of the statutory rules on the subject, a writ of quo warranto is available. In Maqbool Elahi v. Khan E Abdul Rehman Khan (PLD 1960 SC 266) the nature of office held by the Director of a Joint Stock Company was considered and it was held to be a public office such as would attract the writ jurisdiction in the nature of quo warranto or mandamus in appropriate cases. Also refer Salahuddin v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai (PLD 1975 SC 244). In this case, election of the respondent therein as members of the Board of Directors and other offices, was called in question through Constitutional proceedings taken under Article 201 of the Interim Constitution of 1972, before the Supreme Court, where the petitioners therein, had taken an appeal against the judgment of the High Court, which had refused relief to them. It was urged that a writ of quo warranto could be issued to call in question the occupation of the office of the Director or the Chief Executive of the Joint Stock Companies, which it were said were public offices. The Supreme Court at page 258 quoted the judgment from the House of Lords in the case, Henry Farran Darley v. Reg ((1846) 8 ER 520). The Supreme Court in particular quoted the following statement from the aforementioned judgment with approval: ‑ "A proceeding 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 the parliament provided the office be of a public nature and substantive office and not merely the function or employment of a deputy or a servant held at the will and pleasure of others." Their Lordships also quoted the statement of law as given by Ferris "Extraordinary Legal Remedies" 1926 Edition page

145. It may, however, be mentioned that the learned Judges of the Supreme Court at page 259 of the reported judgment made specific reference to the fact that the above‑noted two definitions of the term "Public Office" as taken from Halsbury and Ferris had been referred to in the several judgments of the Supreme Court namely Pakistan v. Naseem Ahmad (PLD 1961 SC 445), Faiz Ahmad v. The Registrar, Cooperative Societies, West Pakistan, Lahore (PLD 1962 SC 315), Managing Committee of Cooperative Model Town Society Ltd. v. Kh. Muhammad Iqbal (PLD 1963 SC 179), Masudul Hasan v. Khadam Hussain (PLD 1963 SC 203), Zainul Abidin v. Multan Central Cooperative Bank Ltd., Multan (PLD 1966 SC 445), R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146) and M.U.A. Khan v. Rana M. Sultan (PLD 1974 SC 228), but these cases related to the issuance of the writ of mandamus where actually the question to be determined was whether the party has a right enforceable in law, which is not a condition for the issuing of writ of quo warranto. Their Lordships quoted Maqbool Ilahi's case (supra), with approval. The following passage of the precedent case maybe seen: ‑ "In the light of the foregoing discussion, the position of a Public Limited Company in relation to the applicability of the various clauses of Article 201 of the Interim Constitution or Article 199 of 1973, may be summed up by saying that while, it cannot ordinarily be regarded as a person performing functions in connection with the affairs of the Federation; a Province or a Local Authority simply for the reason that its functioning is regulated by a Constitution; yet nevertheless, the offices held by its Director and its Chief Executive which term would include the Managing Director, must be regarded as public offices inasmuch as, they involve the performance of public duties which are of the greatest importance to the public interest in the field of the operation of Public Joint Stock Companies under the Company Law. As a consequence, although a Joint Stock Company may not be amenable to the issuance of a writ under clauses 2(a)(i) and 2(a)(ii) of Article 201 of the Interim Constitution, but its Directors and Chief Executive are within the purview of clause 2(b)(ii) of the said Article which permits the High Court to issue a writ in the nature of quo warranto requiring a person within its territorial jurisdiction, holding or purporting to hold a public office to show under what authority of law, he claims to hold that office." It would thus be seen that the office of the Director of Joint Stock Companies has been held to be a public office on the ground that it "involves the performance of the above duties which are of the greater importance to the public interest". In Abdul Haq Kausar and another v. Alim Akhtar Shah and another 1989 CLC 1907 following the ratio laid down in Anwaar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), it was held "only such appointments, which are result of contracts freely entered into between employees and employers, are governed by the principle of `master and servant'. But in cases where appointments are made and controlled by some law or statutory rules creating fetters upon freedom of parties in matters of terms of contract, principle of `master and servant' will not be applicable. In the precedent case, the post of General Manager (Administration), Karachi Port Trust was held to be a public office within the meaning of Article 199 of the Constitution and a writ of quo warranto was issued as it was found that the incumbent of the said post was not qualified to hold the post due to lack of prescribed qualification.

10. Applying the principle laid down in the precedent cases, let us examine whether the office of the Director held by respondent No. 1 in the Authority in Grade‑19 and whose duties and functions are relatable to the administration and security of the Authority, is of public importance or not. The answer to this question again turns on the scope of Act XIX of 1976. The Faisalabad Development Authority was constituted under the Act and its preamble will clearly indicate that purpose of the establishment of various authorities under that law was to perform the functions of the Provincial; Government relating to planning and development. The Authority, therefore is an agency through which some of the sovereign functions of the State arc performed. Responsible officers of the Authority are, therefore, perform the same duties as are stated to be the‑ functions of the Authority under the Act, and, therefore, following the principle laid down in the precedent cases, the, present petition for quo warranto is maintainable.

11. Let me now examine whether any provision of the Government Servants (Appointment and Conditions of Service) Rules, 1974, on the subject has been violated while making the impugned appointment. Rule 17 provides that initial appointment to all posts in Grades‑1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government. In the case in hand, a bare reading of the impugned appointment letter shows that it was issued by the Director‑General under the orders of the Chief Minister without conducting any interview/examination and following the procedure laid down in the Government rules. The operative part of the impugned appointment letter reads thus: ‑ ‑ "In compliance with the orders of the Chief Minister, Punjab dated 9‑3-1989 the Director‑General, F.D.A. Faisalabad vide his order dated 21‑3‑1989 has been pleased to offer you the post of Deputy Director (Finance) in BS‑18 plus other allowances as admissible under the Rules in the Faisalabad Development Authority on the following terms and conditions." ?

12. Respondents Nos. 2 and 3 herein have also frankly conceded in their written statement that as for as appointment to BS‑18 is concerned, on receipt of instructions, a summary was submitted to the Chief Minister, who issued directions on 9‑3‑1989 for appointment of respondent No. 1 as Deputy Director Finance in BS‑

18. It was further stated in the written statement that "the subsequent appointment to the post in BS‑19 was made on receipt of instructions from the Chief Minister, Punjab. The directions had to be complied with in view of the provision of section 16 ibid", which provides that "the Authority shall, in discharging its functions, act and be guided, by such directions as Government may give to it from time to time". It would be advantageous to reproduce below the relevant portions of the written statement filed by respondents Nos. 2 and 3: (c) As regards, the Chief Minister Directive, it is submitted that he being the Chief Executive of the Provincial Government was competent to issue such directions and the Director‑General was obliged to follow the same as per provisions of section 16 of the Development of Cities Act, 1976. (h) The appointment of the respondent No. 1 both in BS‑18 and 19 having been made under the directions of the Chief Minister, Punjab, it was deemed to have been made in supersession of the rules on the subject as the directions by the Government are to be followed in accordance with the provisions of section 16 of the Development of Cities Act, 1976. However, it is correct that the respondent No. 1 is directly related to Mr. Muhammad Afzal Sahi, an MPA of IJI from Faisalabad. (i) It is correct that no advertisement was issued while these appointments were made. The normal appointments made by the appointing officer of the Faisalabad Development Authority would have been possible only after due advertisement etc. but this formality would not be needed when the appointment is to be made under the directives by the Chief Minister, Punjab in view of the provisions of section 16 ibid. For this reason, the condition of specific length of service as stated by the petitioner was not applicable under the above special circumstances. 3(i) The directions having been issued by the Chief Minister, Punjab, i.e. the Chief Executive of the Government of Punjab are deemed to have ‑ been so passed in supersession of normal channel of appointment and the respondents Nos. 2 and 3 being under legal obligation as per section 16 ibid are deemed to have followed such instructions in a lawful manner. The appointments having been made in compliance with the directions by the Chief Minister, Punjab, are covered under section 16 ibid. (iv) The claim by the petitioner is not correct. The rule for advertisement and invitation of applications applies for normal appointments. Here, tsar appointments were made in compliance with the orders of the Chief Minister, Punjab. Hence no advertisement etc. was required."

13. The above discussion would show that the impugned appointment was violative of the provisions of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and is therefore, liable to be quashed.

14. There is no force in the submission of Ch. Hamid‑ud‑Din that since the appointment of the petitioner has been made by the Director‑General and, therefore, a writ of quo warranto is not competent to inquire into the basis and reasons of appointment, which weighed with the competent authority. It is true that the Authority in its meeting held on ‑26‑4‑1978 resolved that its officers may continue to exercise the same power, as are allowed to the Lahore Development Authority including WASA and by virtue of the Authority's decision dated 19‑9‑1977, the Director‑General was delegated with the powers to create and abolish all posts upto NPS‑19, and to make appointments, promotions and internal arrangements against all posts in BPS‑19 and below etc. In the instant case, however, the Director‑General of the Authority has not passed the impugned order in the exercise of his delegated powers but it is clearly stated in the letter of appointment No, 697? 703/PA/Admn/FDA, dated 17‑9‑1989 of respondent No. 1 that in compliance with the orders of the Chief Minister; Punjab, dated 12‑9‑1989, the Director? General offered him the post of Director (Finance) in BS‑

19. The relevant record produced by Mr. Wasim Mahmood Khan, Director (Administration and Coordination) as well as the written statement filed on behalf of the Authority and its Director‑General also state that the impugned appointment was not made by the Director‑General in exercise of his delegated powers but under the directive of the Chief Minister without following the normal procedure applicable for recruitment, to such posts, and therefore, it cannot be said that the impugned appointment was made by the Director‑General in the exercise of his delegated authority. ?The question which still needs to be examined is whether the impugned order is covered by section 16 of the Act, which provides that the Authority would act and be guided in discharging its functions, by the directions of the Government. Clearly, such a direction and guideline has to be in conformity with the Act and its objects. The Government, in the purported exercise of powers under section 16 cannot be permitted to nullify any of the provisions of the Act either directly or indirectly in the garb of the impugned directions, which tantamounts to usurp the powers vested in the Authority by the Government under section 9 of the Act. I am of the considered view that the Government cannot be permitted to interfere with the functions of the Authority by issuing directions regarding appointment of a particular person against a particular post to the exclusion of all other eligible candidates and without following the normal procedure. There is no express or implied provision in section 16 ibid to issue the instructions for appointment and recruitment of a particular person. Guideline, of course, can be laid down by the Government as to the methodology for recruitment of employees in so far as it is not inconsistent with the provisions of the Act or the rules framed F thereunder but the directions for appointment of a person without assigning any reason and in violation of the rules in force, could not be sustained. The case of Ali Muhammad v. Muhammad Ramzan (1969 SCMR 46), relied upon by Ch. Hamid‑ud‑Din has no relevance to the facts and circumstances of the present case. In the precedent case, a challenge was made to the dismissal of a temporary employee of the Municipal Committee, Lyallpur, which was upheld in appeal by the Commissioner. The provincial Government, in the exercise of its powers under section 110 of the Municipal Administration Ordinance (No.X of 1960), in its capacity as the Controlling Authority interfered with the order passed by the Committee. Leave to appeal was granted by the Supreme Court to consider whether the order of the Provincial Government, could be passed under the aforesaid provisions of law in its capacity as the Controlling Authority, it was held that although an order passed in appeal under section 119 of the said Ordinance was final and could not be called in question in `any Court', yet this did not mean that the Government in its capacity as the Controlling Authority could not interfere with the order Section 111 of Ordinance No. X of 1960 provides that if in the opinion of the Controlling Authority anything done or intended to be done is not in conformity with law or is in any way against public interest, the Controlling Authority, may by order, quash the proceedings, suspend the execution of any resolution passed or order made by the Municipal Committee or require the Municipal Committee to take such action as may be specified. Article 73 of the Basic Democracies Order, 1959, provides that the Government shall exercise general supervision and control over the Local Councils in order to ensure that their activities conform to the purpose of the order. In that case, the Provincial Government in its capacity as the Controlling Authority found that the order passed by the Committee was not proper and accordingly interfered with the same. Even under the aforesaid provisions, the purpose of supervisory jurisdiction, vesting in the Controlling Authority was to see that the council's function is conducted in accordance with the provisions of the enactment. The Controlling Authority can give guideline to the local councils and such directions, as it may deem fit, consistent with the provisions of the statute and not in derogation thereof. Reference may also be made to Abdul Ghafoor v. Hasan Zaheer (PLD 1965 Lahore 27), where while interpreting the provisions of Article 75 of the Basic Democracies Order, it was observed that the provision of supervision did not confer power on the Controlling Authority to fill vacancies of Chairman.

15. Before parting with the judgment, it may be pointed out that although a challenge was made in the writ petition to appointment of the respondent Ghulam Murtaza both in Grades 18 and 19, but during the course of arguments, Mr. Abid Hasan Minto, clarified that grievance of the petitioner is restricted to the appointment of respondent No. 1 as Director, (P&S) WASA, in Grade‑19 alone in pursuance of the impugned order dated 17‑9‑1989. 1 am also inclined to hold that appointment of respondent No. 1 in Grade‑18 was a transaction past and closed, in that, the subsequent appointment in ('trade‑19 was not by way of promotion, but was made independently as an initial appointment. In view of the above, the impugned order of appointment of respondent No. 1 in Grade‑19 in the Faisalabad Development Authority dated 17‑9‑1989 is hereby declared as without lawful authority and of no legal effect. Respondent No. 1 has since been performing his functions and drawing the salary and availing other benefits in pursuance of the impugned appointment, the interest of justice demands that the benefits already accrued and received by him shall not be recovered from him having regard to the facts and circumstances of the case. Resultantly, the writ petition is accepted to the extent indicated above, but there shall be no order as to costs. A.A./M‑730/L???????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.