2018 PLP (C (PLC(CS)N)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through this constitutional petition, in the nature of quo-warranto, filed under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner has assailed the appointment of respondents Nos.5 and 6 to the posts of Director (Engineer) (BS-19) on contract basis, regularization of their services and promotion in BS-20.

2. Brief facts, necessary for disposal of instant petition, are that in response to advertisement dated 10.10.2003, respondents Nos.5 and 6 were appointed as Director (Engineer) (BS-19) on contract basis. Subsequently, vide order dated 29.03.2006, passed by respondent No.4, services of respondents Nos.5 and 6 were regularized. Later on, vide order dated 30.05.2013, passed by respondent No.4, respondents Nos.5 and 6 were promoted to the post of G.M. (Engr.). Hence, this petition.

3. Learned counsel for petitioner submits that as per eligibility criteria, at least 17 years experience / service in BS-17 or minimum 12 years experience/service in BS-18 was required for the posts in question, whereas respondents Nos.5 and 6 did not fulfill the requisite criteria, therefore, their appointments, regularization and promotion to the post of Director (Engineer) (BS-19), are absolutely illegal and without any lawful justification. He further submits that delay alone, in such circumstances, is not a sufficient ground to knock out the petitioner. In the end, he submits that appointments, regularization and promotion in question, being absolutely illegal and without any lawful justification, are liable to be set aside. He has placed reliance upon Abdul Rashid Khan v. Muhammad Saleem Akhtar and others [1996 PLC (C.S.) 791], Abdul Jabbar Memon and others Human Rights Cases Nos. 104 (i), 104 (ii), 104 (iii) and 104 (iv) of 1992 (1996 SCMR 1349), Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 Supreme Court 161), Muhammad Zahid Iqbal and others v. D.E.O., Mardan and others (2006 SCMR 285), Chief Secretary Punjab and others v. Abdul Raoof Dasti (2006 SCMR 1876), Shahid Orakazi and another v. Pakistan through Secretary Law Ministary of Law Islamabad and another (PLD 2011 Supreme Court 365), Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949), Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others (2016 SCMR 992), Suo Motu Case No.13 of 2016 and others (2017 SCMR 838), Abdul Bashir and 9 others v. Government of Balochistan through Chief Secretary, Civil Secretariat, Quetta and 3 others [2001 PLC (C.S.) 771], Dr. Jalil Qadir v. Province of Sindh through Chief Secretary, Government of Sindh and 2 others [2010 PLC (C.S.) 731], Muhammad Iqbal Khattak v. Federation of Pakistan [2011 PLC (C.S.) 65], Mst. Sumaira Noreen v. District Education Officer (Colleges) Sialkot and 2 others [2011 PLC (C.S.) 485], Mashooq Ali v. Senior Member, Board of Revenue Balochistan and others [2011 PLC (C.S.) 548], Safdar Ali Sahito v. Province of Sindh through Chief Secretary, Government of Sindh and 10 others [2011 PLC (C.S.) 956], Muhammad Zahir Shah and 49 others v. Provincial Police Officer, Khyber Pukhtunkhwa, Peshawar and 4 others [2012 PLC (C.S.) 905], Dr. Pirzada Jamaluddin A. Siddiqui v. Federation of Pakistan through Secretary, Ministry of Education and 4 others [2012 PLC (C.S.) 996], Abdul Malik and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and others [2013 PLC (C.S.) 736] and Qazi Mustafa Kamal v. Federation of Pakistan through Secretary Establishment Division and others [2015 PLC (C.S.) 37].

4. Conversely, learned counsel for respondents submits that eligibility criteria is at least 12 years experience in BS-17 and above, in the relevant field and not 17 years, as claimed by petitioner. He has referred to certain documents, annexed with report and parawise comments, to show that respondents Nos.5 and 6 possessed requisite experience at the time of their appointment to the post in question. He adds that even otherwise, disqualification, if any, stood cured after expiry of 02-years of service. He further submits that instant petition is time-barred in view of the law laid down in Muhammad Liaquat Munir Rao v. Shams-ud-Din and others (2004 PLC (C.S.) 1328). In the end, he submits that petitioner has failed to pinpoint any illegality or legal infirmity in the appointment, regularization and promotion of respondents Nos.5 and

6. He has placed reliance upon Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 PLC (C.S.) 1142), Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others (2005 SCMR 1829), Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others (2008 SCMR 598), Abdul Hameed and others v. Special Secretary Education, Government of Punjab, Lahore and others (2016 SCMR 1611), M.A. Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan Islamabad and 5 others (1999 PLC (C.S.) 686) and Dr. Mujahid Ali Mansoori and others v. University of the Punjab and others (2005 PLC (C.S.) 694).

5. Arguments heard. Available record perused.

6. Examination of available record reveals that initially respondents Nos. 5 and 6 were appointed on contract basis. Later on, their services were regularized w.e.f. 23.01.2006, after the approval of NHA Executive Board, vide order dated 29.03.2006, which reads as under:-- "In pursuance of confirmed minutes of 16th meeting of National Highway Council (NHC) held on October 4, 2005, approval of NHA Executive Board, vide 136th meeting held on 23.01.2006 at Islamabad and subsequent approval of the respective competent authorities the following officers who were appointed on contract basis (likely to be regularized subject to approval of revised organization and availability of regular posts against regional quota) through advertisement dated 10th October 2003 against the vacancies of RAMD are hereby inducted into the regular establishment of NHA with effect from the date mentioned against each:- S.No. Name Designation/ BS Appointed against Quota Date of Induction into Regular Establishment of NHA I Mr. Parvez lqbal Sulehri Director (Engineer) BS-19 Punjab 23.01.2006 (As approved by NHA Executive Board) Ii Mr. Muhammad Naveed lqbal Wahlah Director (Engineer) BS-19 Punjab 23.01.2006 (As approved by NHA Executive Board) Iii .... .... .... ....

2. The appointment of the officers will be subject to rules/ regulations/terms and conditions in vogue as applicable to other regular employees of NHA.

3. They will be on probation for one-year w.e.f. the date of Induction as mentioned in Para-1 above, extendable for further one year. If any one failed to complete the probation period due to un-satisfactory performance, the appointment / induction of the concerned officer will stand terminated without any advance notice. "

7. Afterwards, said respondents were appointed against the posts of GM (Engr) BS-20 on acting charge basis, vide order dated 30.05.2013, which is reproduced hereinbelow:- "Subject: Acting Charge Appointment as GM (Engr) BS-20 against temporary PC-I posts. In compliance of Federal Service Tribunal Islamabad's judgment dated 20.10.2011 passed in Appeal No.479 (R)CS/2011 and 480 (R)CS/2011 filed by M/s Pervez Iqbal Sulehri and Muhammad Naveed lqbal Wahla, Director (Engr) BS-19 (regular employees) respectively, and on recommendations of DPC held on 03.1.2013, M/s. Pervez Iqbal Sulehri and Muhammad Naveed lqbal Wahla, Director (Engr) BS-19 (regular) presently posted as GM (Planning) NHA HQ and GM (Punjab-North) NHA Lahore in their own pay and scales respectively are appointed as GM (Engr) BS-20 on acting charge basis against temporary/PC-I posts w.e.f. 02nd December, 2010 (the date from their juniors were appointed as GM (Engr) BS-20 on acting charge basis against PC-I posts. The detail of appointment of both the officers as GM (Engr) BS-20 on acting charge basis is as under:- Lt Col (R) Pervez lqbal Sulehri (i) From 02.12.2010 to 11.10.2011 against temporary / supernumerary post of GM (Engr) BS-20 (ii) From 12.10.2011 to onward against PC-I post of GM (Engr) BS-20 Mr. Muhammad Naveed lqbal Wahla (i) From 02.12.2010 to 22.02.2012 against temporary / supernumerary post of GM (Engr) BS-20 (ii) From 23.03.2013 to onward against PC-I post of GM (Engr) BS-20

8. Perusal of record shows that for appointment to the posts in question, the eligibility criteria is mentioned in Schedule-IV of the Gazette of Pakistan, Extra, March 30,1995, the relevant part of which is as follows:- S.No. Description Qualification Experience Age Limit Max 1 .... .... .... .... 2 Director (BS-19) a. Engineer b..... Ph.D (Civil) M.Sc (Civil) B.Sc (Civil) .... 12 years in BS-17 and above in relevant field .... 45 ....

9. In order to justify the experience required for the posts in question, the respective experience certificates of respondents Nos.5 and 6 have been annexed with report and parawise comments. The tenor of Experience Certificate of respondent No.6, dated 20.10.2003, issued by the Secretary Punjab Local Government, Board, showing 10 years experience, is as under:- "EXPERIENCE CERTIFICATE: It is certified that Mr. Muhammad Naveed lqbal Wahlah (BS-17), Assistant Town Officer (I&S), Town Municipal Administration, Data Gunj Bukhsh Town, Lahore is working in the Engineering Functional Unit of Local Councils Service since 23.10.1993. He had remained posted as Municipal Engineer and Assistant District Engineer in different Local Councils in the Punjab. He has supervised the Construction / Maintenance of Buildings, Sewerage, Roads, Bridges, Drains, Culverts and Water Supply Projects of concerned Local Councils." Likewise, the Republic Engineering Corporation (Private) Limited and the Fine Weaving and Spinning Mills (Pvt.) Ltd. also issued experience certificates in favour of respondent No.6, which are showing experience of almost 10-months and 02-years, 05-months, respectively.

10. Similarly, experience certificate, issued by the General Headquarters, General Staff Branch, Engineer Directorate, Rawalpindi, in favour of respondent No.5, showing 19-years experience, is as under:- "EXPERIENCE CERTIFICATE TO WHOM IT MAY CONCERN (January 1983 to May 2002) It is certified that as per the service record, Lt Col (R) Parvez lqbal Sulehri has served in Corps of Engineers of Pakistan Army as a qualified Civil Engineer from January 1983 to May 2002. During his processional career he remained employed on a variety of Civil Engineering Projects of varying magnitudes. His performance as Civil Engineer has been exemplary. He is not only an engineer but is an excellent project manager also. He has always been very innovative in his approach. In addition to Civil Engineering he has vast experience of Administration, General Management and Project Management. He has been very keen in improving his educational base. During his service he has also been employed on staff and instructional appointments." In the same way, the Consultancy Directorate SPD, Rawalpindi also issued experience certificate in favour of respondent No.5, showing experience of 01 year and 03-months in BPS-19.

11. It is evident from the aforesaid that respondents Nos.5 and 6 were initially appointed on contract basis against the temporary/project posts of Director (Engineer) (BS-19) in NHA in the year 2004, having requisite experience in BS-17 and in private companies, as explained above, and were appointed against temporary posts of Director (Engineer) BS-19 in NHA, in the year 2006. However, on creation of regular / permanent posts of Director (Engineer) BS-19, they were adjusted by way of regularization against the newly created posts of Director (Engineer) BS-19 and by that time, they had attained the requisite experience in the relevant field. Respondents Nos. 5 and 6 had been inducted into regular service of respondent-NHA since 23.01.2006, performing their services against the posts of Director (Engineer) BS-19 and were promoted w.e.f. 30.05.2013.

12. The appointment of respondents Nos. 5 and 6 was earlier challenged before learned Federal Service Tribunal ("FST"), Islamabad in Appeal No. 590(R)CS/2009 titled Mansoor Ahmed Sirohey v. National Highway Authority through its Chairman, Islamabad and 5 others, whereby vide judgment dated 14.02.2011, it was observed that appointment of respondents Nos. 5 and 6 had been made as per rules. The relevant observations are as under:- "

8. The National Highway Authority Employees Service Rules, 1995 have not been violated. The appointment of respondents Nos. 5 and 6 had been made according to the rules against direct appointment quota. The appellant has already been promoted with effect from 22.10.2007. Hence, we see no merit in the appeal. The suitability of respondents Nos.5 and 6 for appointment could be determined by NHA only. It is submitted that these respondents are technically and endemically more qualified than the appellant. We shall not enter into this aspect of the case. The Tribunal is not the proper forum to determine as to which of the parties is better qualified. It is for the employer to look into the capabilities of the candidates. The Tribunal shall interfere only when some law is violated. In the appeal we see no such violation."

13. Record reveals that there is a long history of litigation between respondent No.6 and said Mansoor Ahmed Sirohey, who challenged appointment of respondent No.6 through W.P.No.2955 of 2006, which was converted into afore-referred Appeal No.590/(R)-CS/2009. Rather another colleague of respondent No.6, namely Fazal Nawab Khattak also challenged the said appointment through Appeal No.946/(R)-CS/2011 before learned FST, Islamabad titled Fazal Nawab Khattak v. NHA and 6 others, wherein respondent No.6 was impleaded as respondent No.4. Said appeal was dismissed vide judgment dated 12.11.2015. Being dissatisfied, said Fazal Nawab Khattak filed C.P. No. 354 of 2016, which was also dismissed by Hon'ble Supreme Court of Pakistan vide order dated 10.03.2016.

14. There is nothing on record to show that respondents Nos.5 and 6 procured their appointments, regularization and promotion through fraud or illegal means. In this eventuality, when the appointees are not at fault, the appointing authority ought to have been proceeded against. It is settled law that party should not be made to suffer for action or inaction of the authority, who was obliged to follow the law. The Hon'ble Supreme Court of Pakistan, vide judgment dated 11.06.2014, passed in C.P. No.51-L of 2014 titled Ahsan Jabbar v. Government of the Punjab, and others has held that if some fault was committed by the departmental authorities while assessing eligibility for appointment, the employee could not be deprived from his job due to faults of the department. At this belated stage, respondents Nos. 5 and 6 cannot be penalized due to irregularities, if any, committed in the process of appointment and subsequent steps. Reference can be made to Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678), the relevant portion of which is as under:- "

7. We are afraid that the contention so raised by him is not correct as the Director Agriculture appointed him on 10.11.1990 and thereafter his service was regularized w.e.f. the same date in the year of 1993. He served the department for about 11 years as a regular employee and during course whereof, there was no complaint of whatsoever nature against him, calling for action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It may be noted that these rules contemplate an action against an employee who is guilty for the breach of good service order, indiscipline, misconduct etc, but it does not, contain any provision on the basis of which appointment of an employee can be cancelled on the ground that it has been made illegally. In other words in such-like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment, as it has been observed by this Court in the case of Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034. ...."

15. Under the law, decisive step taken by the authority cannot be withdrawn. Law is well settled that once a right is created by extending benefit for no default of a person, the same cannot be taken away on mere assumption, supposition, whims and fancy. Such right, once vested, could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae. Even in presence of any legal defect in initial appointment, principle of locus poenitentiae would not permit competent authority to undo same after a long time and remove incumbent from service. Reliance is placed upon Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others (2008 SCMR 598) and Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others (2015 SCMR 1418). In the case of Mst. Basharat Jehan supra, the Hon'ble Apex Court has held as under:- "

20. Once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence (one may refer to Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350)."

16. Undeniably, services of respondents Nos. 5 and 6 have already been confirmed/regularized and instant petition is suffering from gross laches, without there being any justifiable explanation. It is well-settled that delay defeats equity as equity aids the vigilant and not the indolent. Law of laches takes away right of a party to have its enforcement which is otherwise, enforceable under the law because the law requires that one having an enforceable right should seek its enforcement within time specified by law. In the case of Muhammad Liaquat Munir Rao supra, the Hon'ble Apex Court has held as under:- "8. .... The learned counsel for the respondent No.1 could not give any explanation whatsoever as to what had prompted him to file the writ petition after a deep slumber of more than a decade. In an appropriate case the Court is entitled to look into the conduct, motive or lack of bona fides of a writ petitioner and also the delay in filing a writ petition in the nature of quo warranto for the purpose of grant or refusal of relief in the exercise of discretionary jurisdiction. The writ of quo warranto is not issued as a matter of course on hyper-technicalities. The Court can see whether such a person has come with clean hands so as to deserve its indulgence." In the case of Muhammad Rafique supra, the Hon'ble Apex Court has observed that if there is no serious defect in the appointment and constitutional petition is filed after a period of five years, when employees under attack had already been confirmed in their appointment after successful completion of contract period, such a petition suffers from gross laches.

17. Learned counsel for petitioner has failed to point out that either the rights of petitioner or any other contesting candidate were affected as a result of impugned appointments, especially when aggrieved person already approached the competent forum, but failed. He has also failed to establish that respondents Nos.5 and 6 do not possess requisite qualification and experience for the posts in question, thus, writ of quo warranto cannot be issued against said respondents. It is pertinent to observe here that the petitioner being no more suffering the disqualification to hold the post, the writ of quo warranto cannot be issued. Thus, the crucial date to determine the qualification of a person to hold a post is not only the date of appointment but also the date of issuance of the writ and if pending disposal of the writ petition, a person fulfils the qualification to hold such a post, writ of quo warranto is not to be issued against such a person. Reliance can be placed upon M.A. Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and 5 others [1999 PLC (C.S.) 686] and Dr. Mujahid Ali Mansoori and others v. University of the Punjab and others [2005 PLC (C.S.) 694]. In the case of M.A. Jabbar supra, this Court has observed as under:- "10. ....The petitioner being no more suffering the disqualification to hold the post, the writ of quo warranto cannot be issued. Thus, the crucial date to determine the qualification of a person to hold a post is not only the date of appointment but also the date of issuance of writ petition and if pending disposal of the writ petition, a person fulfils the qualification to hold such a post, writ of quo warranto is not to be issued against such a person. Reference may be made to Farzand Ali v. West Pakistan (PLD 1970 SC 98) and Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315)."

18. The argument of learned counsel for petitioner, with reference to the cases of Suo Motu Case No.13 of 2016 etc and Mashooq Ali supra, that even if the lacuna has been overcome by passage of time, it does not condone the illegal appointment, is concerned, suffice it to say that disqualification, if any, has already been cured with the passage of time and no interference was made in the earlier litigation. Therefore, this Court, with utmost respect, is of the view that these cases are based on quite distinguishable facts and are not applicable to the proposition in hand. Hence, this argument carries no force.

19. Needless to observe here that grant of relief in writ jurisdiction, irrespective of its kind is discretionary, which is not only required to be exercised judiciously but the High Court would be fully competent, while exercising such discretion, to test the bona fide of petitioner to see if he has come to the Court with clean hands. In case, it is determined that petitioner approached the Court with ulterior motive, mala fide intention and as an instrument of others, the relief can be declined. Reliance can be placed upon the case of Dr. Azim-ur-Rehman Khan Meo supra. Even otherwise, minor irregularities, if any, in the appointment of respondents Nos.5 and 6, are not sufficient for issuance of writ of quo warranto against them. High Court is not bound to interfere in each and every matter unless there are some compelling reasons showing that non-interference would either result in injustice or amount to support the retention of illegal gain. In the instant case, appointment of respondents Nos.5 and 6 was not disturbed either by learned FST, Islamabad/High Court, or Hon'ble Supreme Court in the earlier litigation. Under the circumstances, interference at this stage would not serve the cause of justice.

20. In view of the above discussion, instant petition, being devoid of any force, is hereby dismissed with no order as to costs. ZC/A-10/L Petition dismissed.