2015 P L C (C.S.) 526
[Balochistan High Court]
Before Qazi Faez Isa, C.J., and Muhammad Kamran Khan Mulakhail,J
Mirza LUQMAN MASUD
Versus
GOVERNMENT OF PAKISTAN, ESTABLISHMENT DIVISION through Secretary and
14 others
Constitutional Petition No.177 of 2013, decided on 3rd April, 2014.
(a) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of High Court ---Territorial jurisdiction ---Principle ---
Civil service ---Writ of quo warranto---Scope---Petitioner assailed appointments of respondents
who were not serving within territorial jurisdiction of High Court ---Validity ---High Court under
Art.199 of the Constitution enjoyed ample powers but it was mandatory upon High Court to
confine itself to its jurisdiction as provided in the Constitution---High Court was competent to
direct any person performing functions in connection with the affairs of Federation. Province or
a Local authority to refrain from doing anything, which was not permitted by law or to do
anything by law he was required to do, as well as, in terms of writ of quo warrant to hold public
office but within its territorial jurisdiction only and not otherwise ---Respondents were appointed
by authorities in Islamabad and had never served with the territorial jurisdiction of High Court ---
High Court declined to call upon the respondents in terms of writ of quo warranto to explain as
to under what authority of law they were holding offices as it would amount to transgression of
Constitutional authority of High Court ---Petition er failed to satisfy that High Court could
exercise jurisdiction against respondents who were neither appointed nor carrying out their duties
within the territorial jurisdiction of High Court--- Respondents were not holding any post created
by Constitution of Pakistan and performing functions within the territory of the Province or
which included the Province in respect whereby High Court could exercise jurisdiction---Petition
was dismissed in circumstances.
Muhammad Yasin v. The Federation of Pakistan a nd others PLD 2012 SC 132 and Tariq
Aziz -ud-Din's case 2010 SCMR 1301 distinguished.
(b) Constitution of Pakistan ---
----Art. 199 (1)(b)(ii)--- Writ of quo warranto--- Scope ---Issuance of writ of quo warranto is an
extraordinary jurisdiction of High Cour t and is invoked when stipulations in the Constitution for
its issuance are met ---In view of Art.199(1)(b)(ii) of the Constitution, petitioner has to show that
respondents are holding office in violation of Constitution or law and thereafter same can be
asked from respondents that as to under what authority they are holding public office ---High
Court can also inquire into the conduct and motive of petitioner ---No specific rule existed for
exercise of discretion by High Court in granting or refusing writ in the nature of quo warranto
and it depends on facts and circumstances of the case---Petitioner had to prima facie show that
respondents lack qualifications for holding or purporting to hold public office that they are
holding.
Farooq Anwar for Petitione r.
Nemo for Respondents.
Date of hearing: 18th March, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- The following prayer has been
made in this petition:---
"(a) An order be passed by this honorable Court, requiring respondents Nos. 6 to 15 holding
public office to show under what authority of law they claim to hold the respective office.
(b) Declare the appointments of the respondents Nos.6 to 15 illegal, in sheer violation of the
governing rules anal the Notification dated 4th September, 2003 for appointment of respondents
Nos.6 to 15 and subsequent notification dated 31st December, 2003 as well as 15th October,
2005 to the extent of promotion thereof void ab- initio.
(c) In view of above declaration at paras (a) and (b) the authorities/ officers involved in
process of illegal appointment of respondents Nos.6 to 15 may be ordered to be dealt in
accordance with law.
(d) Direct the respondents Nos.1 to 4 to recover all the benefits and remuneration received by
the respondents Nos.6 to 15 a s directed by Supreme Court of Pakistan in Tariq Aziz -ud-Din's
case (2010 SCMR 1301) and Muhammad Yasin v. Federation of Pakistan, and others (PLD 2012
SC 132).
(e) Since the respondents Nos.6 to 15 are illegally and unlawfully appointed, as such, furthe r
promotion, if any, may also be declared as void ab initio."
2. Mr. Farooq Anwar, Advocate for the petitioner contended that the petitioner is a
practicing lawyer, who was serving as Senior Investigating Officer in the National
Accountability Bureau ("N AB") at regional office, Quetta, but completion of his employment
contract he was relieved from office. The learned counsel stated that the instant petition has been
filed against the respondents Nos.6 to 15, to call upon them to show that under what autho rity of
law they are holding public offices, when their appointments were made in violation of NAB
Ordinance, 1999 (hereinafter referred to as the Ordinance"). He referred to section 28 -C of the
Ordinance and stated that in pursuance of the said section the Notification S.R.O.780(I)/2002
dated 26th October, 2002, the National Accountability Bureau (NAB) Employees Terms and
Conditions of Service (TCS), 2002 ("TCS 2002") were framed and published us a statutory
notification, which relate in the appointments i n the NAB and added that appointments are to be
made according to the criteria laid down in Chapter -3 of the TCS, 2002. He further stated that
presently respondents Nos. 6 to 15 are serving in various offices of the NAB, including, the
Headquarter at Islam abad and other regional offices. He added, while referring Chapter 14 of
Part-VII of the TCS, 2002 and schedule appended thereto that the qualifications for every post is
prescribed therein, but contrary to the mandate laid down in the Ordinance, the respondents Nos.
6 to 15, who are retired army officers, were appointed by the NAB Headquarters Islamabad in
utter violation of the Ordinance and TCS, 2002 issued thereunder. He urged that since the army
officers generally do not possess the requisite qualification and majority of them are simple
intermediate, therefore, none of them were qualified to hold those positions. He lastly submitted
that in case of failure of the respondents to show that they have the requisite qualifications, to
hold their posts (he a ppropriate directions by means of writ of quo warranto be issued and they
be immediately removed from the offices being held by them.
3. That except respondent No.12, none of the respondents have been appointed within the
territorial jurisdiction of this court nor anyone of them is serving within the jurisdiction of this
court. The petition is also silent about alleged disqualification of anyone of them. We therefore
enquired that, without establishing a prima facie case and without mentioning the qualifi cation of
the respondents, whether a notice in nature of proposed writ of quo warranto can be issued
against the respondents. The learned counsel responded that in view of the Article 199 of the
Constitution of the Islamic Republic of Pakistan ("the Consti tution") this court is empowered to
call upon anyone, who holds a public office, irrespective of the territorial jurisdiction of this
court.
4. We have heard the learned counsel at length and have gone through the petition. Before
attending the contentions raised by the learned counsel, it would be advantageous to reproduce
the relevant provision of the Constitution. Article 199 of the Constitution provides the
jurisdiction of the High Court and its sub- clauses (1)(b) (ii) is related to the writ quo warra nto,
which stipulates as under: ---
"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 jurisdiction of this court has been invoked for relief of quo warranto against the
respondents Nos.6 to 15, but the above referred provision of the Constitution clearly mentions
"within the territorial jurisdiction of the court". The High Court under A rticle 199 of the
Constitution enjoys ample powers, but it is mandatory upon the High Court to confine itself to its
jurisdiction as provided in the Constitution. The High Court is competent to direct any person
performing functions in connection with the affairs of the Federation, Province or a Local
authority to refrain from doing anything, which he is not permitted by law or to do anything by
law he is required to do, as well as, in terms of writ of quo- warranto, to call upon anyone that
under what authority of law he/she holds or purported to hold the public office, but within its
territorial jurisdiction only and not otherwise.
It is suffice to mention here that the respondents were appointed by the NAB
headquarters in Islamabad, and have never serve d within the territorial jurisdiction of this court.
They therefore cannot be called upon by this Court in terms of writ of quo- warranto to explain
under what authority of law they are holding the offices as it will amount to transgression of the
constitut ional authority of this High Court.
5. The judgments cited by the learned counsel for the petitioner in the prayer clause (d) of
the petition are not supportive to the petitioner's case being not applicable to the facts and
circumstances of the instant c ase. The first one is Muhammad Yaseen v. The Federation of
Pakistan reported in PLD 2012 SC 132, wherein the appointment of the Chairman of the Oil and
Gas Regulatory Authority (OGRA) was called in question before the Hon'ble Apex Court by
invoking its jur isdiction under Article 184(3) of the Constitution. Complete and detailed
information was laid before the Hon'ble apex Court and after thorough scrutiny the judgment
was passed. In Tariq Azizuddin's case reported in 2010 SCMR 1301, which was registered as
Human Rights Case No.8340- G/2009, one Mr. Tariq Azizuddin from the Foreign Service Group,
moved an application addressed to the Hon'ble Chief Justice of Pakistan, stating therein that
Government of Pakistan had promoted officers of various occupational groups, including the
Foreign Service Group, from BS -21 to BS -22 in total violation of the Constitution, principles of
merit, seniority and fairplay and the competent authority had exercised its powers in an arbitrary
manner. The said petition was entertained under Article 184(3) of the Constitution. The Hon'ble
Apex Court considered that it involved a matter of public importance with reference to the
enforcement of the fundamental rights conferred by Chapter I of Part II, of the Constitution. The
facts and ci rcumstances of the judgment (supra) are quite different from the facts and
circumstances agitated in the instant case.
6. The issuance of a writ of quo- warranto is an extraordinary jurisdiction of this Court and
is invoked when the stipulations in the Constitution for its issuance are met. In view of the
Article 199(1)(b)(ii) of the Constitution the petitioner has to show that the respondents are
holding office in violation of the Constitution or the law and thereafter same can be asked from
the respondents that under what authority of law they are holding the public office. The court
will also inquire into the conduct and motive of the petitioner. There is no specific rule for the
exercise of discretion by the court in granting or refusing the writ in the nature of quo warranto
and it will depend on the facts and circumstances of the case. The petitioner has to prima facie
show that the respondents lack qualifications for holding or purporting to hold the public office
that they are holding. An omnibus pet ition has been filed in which a number of officers serving
in the NAB all over the country have been arrayed as respondents, but as observed herein above
the petition is hopelessly silent about specific information regarding their qualifications and more
specifically that they do not have the qualifications that the law requires, which could necessitate
interference by this court in terms of writ of quo -warranto, therefore, the petition on this score
too is not maintainable.
7. That for this Court to exer cise jurisdiction in terms of writ of quo -warrant as envisaged
under Article 199(1)(b)(ii) of the Constitution the petitioner has to prima facie discharge the
initial burden by placing requisite information before the court, which he has not done and the
whole petition is based upon surmises and conjectures. Moreover, the petitioner has also failed to
satisfy us that we can exercise jurisdiction against the respondents, who were neither appointed
nor carrying out their duties within the territorial jurisdic tions of this Court. It may be clarified
that the respondents are not holding any post created by the Constitution of Pakistan and
performing functions within the territory of the Province or which includes the Province in
respect whereby the High Court co uld exercise jurisdiction.
Thus, the petition is dismissed in limine being not maintainable.
MH/3/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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