1996 PLP (C (PLC(CS))

Laws Cited

Representation

• S.M. Quadri for Appellant.
• Ch. Ejaz Yousuf, Addl. A.-G. for Respondent No. 2.
• Date of hearing: 29th August, 1995.
• Ch. Ejaz Yousuf, Addl. A.‑G. for Respondent No. 2.
• 3. It is mainly contended by Mr. S.A.M. Quadri, Advocate on behalf of petitioner that respondent being not qualified in Mechanical Engineering is not eligible to hold the post of Mechanical Foreman and as such respondent is not validly holding the public office, and therefore, he has to be restrained from performing function as such by issuance of writ of quo warranto. It is next contended that the formalities mandatory in nature were never complied with and appointment has been made in violation of the prescribed procedure and relevant service rules and as such, being unlawful the respondent has absolutely no right to perform his duties as Mechanical Foreman.
• 4. Chaudhary Ejaz Yousaf, Additional Advocate‑General appeared on behalf of Chief Inspector of Mines (respondent No. 2) and strenuously controverted the position as canvassed by Mr. S.A.M. Quadri, Advocate on behalf of petitioner. He urged vehemently that petitioner has no locus standi to move such petition being not an aggrieved person as no legal right whatsoever was vested in him, hence the question of its infringement does not arise. It is next urged that the Minister concerned was fully competent to make such appointment in view of the powers as conferred upon him and besides that the pointing authority was competent to make such appointment in exercise of powers as delegated under Rule 11 of Balochistan Civil Servants (Appointment, promotion and Transfer) Riles, 1979. It is, however, conceded candidly that respondent No. 1 was not called for interview by the Selection Committee.
• 6. We have carefully examined the respective contentions as adduced on behalf of petitioner and for respondent in the light of relevant provisions of law and record of the case. Before we could dilate upon the respective contentions of the parties let we discuss in brief the nature of writ of quo warranto issuance of which is the train prayer. "Quo warranto is special writ and was devised to meet this need which goes under the name quo warranto, that is to say it poses the question by what warrant or authority, the respondent holds or claims a particular office". (AIR 1954 Bom. 116) o We have no hesitation regarding our authority and we art fully competent for issuance of such writ under Article 199(1)(b)(ii) of the Constitution and by requiring particular person with the territorial limits of this province to show under what authority of law he claims to hold that‑office, how he was elevated to that office and by whom and as such the appointing authority is not immune but is equally answerable to explain his competency under law. "Aping of a writ of quo warranto is initiated to test the validity of an appointment to a public office, and the petitioner does not seek to enforce any right of his as such, nor does he complain, of non‑performance of any duty towards him. What is in question is the right of respondent to hold an office of public nature". (PLD 1964 (W.P.) Lah. 125). It seems proper to mention here a few words about public office which in our view cannot be confined to a limited definition which even otherwise is not possible. The Public Office however, has been defined as a right authority and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public. A person holding such public office which in the olden times was issued in the form of writ of quo warranto". (PLD 1966 Lah. 270). In Prem's Civil Practice the following observations has been made (2nd Edition, Volume 7, page 4805):
• 7. In view of said background now we proceed to examine the legal and factual aspect of the matter. The contention as adduced by learned Additional Advocate‑General on behalf of respondent No. 2 that petitioner has no locus standi to invoke the provisions as contained under Article 199(1)(b)(ii) of the Constitution, seems to be devoid of merits because any person irrespective of the fact whether he is aggrieved or not can question the validity of appointment of the holder of a Public Office and redress can be sought under Article 199 of the Constitution against the usurpation of a public office. (PLD 1963 SC 203, Rex v. Speyer (1916) 1 (KB) 595). "A writ of quo warranto can be issued at the instance of a private person, for "every subject has an interest in securing that public duties shall be executed only by those competent to exercise". PLD 1955 Sindh 96; PLD 1957 Kar. 387, PLD 1967 Lah. 227, PLD 1969 SC 42 and PLD 1965 Dacca 330).
• 8. It is an admitted position that the post of Mechanical Foreman was advertised on 10‑3‑1994 by Inspectorate of Mines Balochistan Labour and Manpower Department for the post of Mechanical Foreman (B‑14) and the prescribed qualification was mentioned as Diploma in Mechanical Engineering plus 3 years' experience. The said advertisement seems to be in accordance with the notification which was issued to the Government of Balochistan in exercise of powers as conferred upon it under section 25 of the Balochistan Civil Servants Act, 1974 (IX, 1974) whereby additional amendment in the Appendix to the Balochistan Inspectorate of Mines (Grade 1‑‑15) Technical Services Rules, 1982 was made whereby minimum qualification prescribed. for appointment of Mechanical Foreman by initiate recruitment was Diploma in the Mechanical from recognised University or Board and three years' experience in Mechanical work. There is no ambiguity whatsoever in so far as the prescribed qualifications for the post of Mechanical Foreman are concerned. In response to the said advertisement, admittedly, the petitioner qualified written test and subsequently declared as successful by the Selection Committee. It is, however, not understandable that as to how respondent No. 1 was appointed in utter violation and disregard of the relevant rules as mentioned above. We have not been able to persuade ourselves to agree with Chaudhary Ejaz Yousaf Additional Advocate General by whom it is contended that such appointment could have been made by the Minister in view of Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, which is reproduced herein below for ready reference:‑‑
• 9. A bare perusal would indicate that the Departmental Selection Committee has been authorised to make recommendation for all initial appointments (Grades 1‑‑15) after advertising of the same in newspapers. No authority whatsoever has beer given to Minister concerned for appointment of a person at his own and without recommendations of the Departmental Selection Committee. The learned Additional Advocate‑General could not show any Notification having the sanctity of law authorising the Minister either to bypass recommendations of the Departmental Selection Committee or make appointment at his own. Such an illegal practice is required to be checked in order to minimise the legitimate and genuine grievances of the masses at large. It would be pertinent to note here at this juncture that Hon'ble Supreme Court has taken a serious view of such illegal practice by observing as under:‑‑

Headnotes / Summary

Judgment & Decree