This writ petition seeks an order/direction in the nature of writ of quo-warranto against Respondent No, 6, Dr. Rashid Mehmood Raufi, who is holding the post of District Officer (Health-II), in BS-19 by virtue of the order dated 6.9.2003 of the Secretary Local Govt. and Rural Development/Chairman Punjab Local Govt. Board. This order further directed transfer of the petitioner from the said post to the post as Medical Superintendent I.D., Hospital Bilal Ganj. The petitioner is in regular BS-19 and by virtue of order dated 6.5.2003 of the Punjab Local Govt. Board, he was allowed move over 'in BS.20.
The petitioner is aggrieved of his dislocation and has questioned the authority of Respondent No, 6 to hold the post in question.
2.The learned counsel for the petitioner contends that the post in question is BS-19 while the said respondent is in BS-18. It may be noted that initially, the petitioner had challenged his own order of transfer. The writ petition came up for preliminary hearing on 15.9.2003 on which date. I was of the view that an order of transfer cannot be questioned on account of the bar of Article 212 of the Constitution because the petitioner was a member of Local Council Service. The petitioner sought amendment in the writ petition adding a prayer for issuing a writ of quo-warranto which was allowed.
3.The learned counsel, with reference to the seniority list of BS.19 officers, in the Health Official Unit of the Local Council Service, submits that there are 11 posts in BS-19 and, therefore, there was no warrant to appoint a BS-18 officer to the said post in his own pay scale. It is further submitted that by virtue of the office held by said respondent, he becomes a supervisory authority of the petitioner who is in higher pay scale i,e, BS-20. Reference was made to the letter dated 7.7.2004 of the District Officer Health regarding inspection of the Hospital where the petitioner was posted as Medical Superintendent. It is further maintained that in C.P. No, 77-98 decided by the Hon'ble Supreme Court of Pakistan on 4.5.1998, the Local Govt. Department had undertaken that the department will reconsider the question of appointment of officers of lower grade to the higher posts. It is next maintained that the petitioner was dislocated to accommodate Respondent No, 6 at the instance of the District Nazim and, therefore, the order date 6.9.2003 was male fide. Reliance was placed on the judgment dated 5.7.2004 passed by me in W.P. No, 7206-2004.
4. Dr. M. Mohy-ud-din Qazi, Advocate, represents the Local Govt. Board and the Secretary, Local Govt. and Dr. Ehsan-ul-Haq Khan, Advocate represents Respondent No,
6. Their submissions are summarized hereunder:-- (i)That there are eleven BS.19 posts in the Health Functional Unit out of which two are vacant and services of nine others are being utilized elsewhere.
(ii)Respondent No, 6 was at No, 2 of the seniority list of BS.18 officers. Mr. Manzoor Ahmed Siddiqui was at No, 1 of the said seniority list who is posted at Vehari and has Multan domicile. Therefore, it was not considered necessary to disturb him.
(iii)Since the petitioner is a person aggrieved, he has a motive to bring the petition and that a writ of quo-warranto cannot be issued ex-debito justicia unless the bona fides of the relator are established.
(iv)Appointment of Respondent No 6 to the post in question has been made by the competent authority in good faith and in public interest on administrative grounds, the 'said respondent is in the promotion zone and is likely to be promoted in near future to BS-19 against one of the two vacant posts in near future.
(v)Posting of Respondent No, 6 as District Officer (Health-II) or petitioner's transfer from the said post does not entail any evil consequence because the petitioner has been transferred to a status post i,e,, a post in BS-19.
(vi)As far as the order of transfer of the petitioner is concerned, he had a right of appeal under Rule 20 of the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983.
5. When questioned whether pending finalization of promotion to the two vacant posts in BS.19, the post in question could be filled in by transfer, (borrowing from any Government department), the learned counsel for Respondents Nos, 1 & 2 referred to above said 1983. Rules and submitted that according to the schedule to the said Rules, the post in question is 100% promotion post and, therefore, cannot be filled in by transfer.
6. The submissions made by the learned counsel for the parties have been considered. Perusal of the order dated 6.9.2003 shows that the posting and transfer of the officers mentioned therein including the petitioner and Respondent No, 6 was made in public interest. No public servant has vested right to claim appointment to, a particular post. The only officer senior to Respondent No 6 in BS-18 is posted at Vehari but he has not agitated against the order of appointment of Respondent No, 6 to the post in question presumably, he may not be interested in his posting at Lahore because of his Multan domicile. Respondent No, 6 was the next senior officer in BS-18 and since an officer in Grade 19 is not at present, available, awaiting posting, the temporary arrangement for appointment of Respondent No, 6 to the post in question cannot be said to be illegal or mala fide. The plea of mala fide is sought to be supported by the fact that the petitioner was holding the said post but was dislocated to accommodate a junior officer at the instance of the Zila Nazim. The contention has no merit because shifting of the petitioner from the post in question was recommended by the District Nazim on administrative grounds and in public interest.
The opinion as to public interest formed by a public functionary cannot, be substituted by this Court in exercise of extraordinary discretionary jurisdiction.
7. As far as the contention of the learned counsel for the petitioner based on the letter dated 7.7.2004 of the District Officer Health-II is concerned, perusal thereof shows that it was the E.D.O.
(Health) who had visited the I.D. Hospital on 3.7.2004 and made certain recommendations which were reduced into writing under the signatures of the District Officer (Health). This letter does not indicate that the Medical Superintendent of I.D. Hospital is a subordinate of District Officer (Health) or his supervisory authority.
8. As far as the submission based on the judgment of the Hon'ble Supreme Court of Pakistan in C.P.
No 77-98 is concerned, the following observations were made in the said order: "Sufficient reasons should be available on record for the posting of an officer in a higher grade.
When the officers of the same grade are available, it is expected that one such officer should be appointed against the post which is available for appointment, according to the applicable rules.
Therefore, is not a case where any undertaking given before the Honourable Supreme Court was violated.
9. As far as the recommendation of the District Nazim is concerned, he is the head of the said District Govt. and could competently make a recommendation for posting and transfer of officers in his district.
10. As far as reliance of the learned counsel for the petitioner on the judgment dated 5.7.2004 in W.P. No, 7206-2004 is concerned, it has no application to the facts of the present case. In the said case an officer in BS-18 in the Accounts Functional Unit of the Local Council Service had questioned appointment of an officer in BS-17 as Town Officer, Finance, Tehsil Municipal Administration, Data Ganj Bakhsh Town, primarily on the ground that the said post was in BS.
19. It may also be noted that in the said case the Secretary Local Govt. had conceded that appointee to the post in question in the said case was not eligible.
11. For what has been stated above, I do not find any merit in this petition which is dismissed.