IFTIKHAR HUSSAIN CHAUDHRY, C.J.- Petition has been submitted for issuance of a writ in the nature of quo warranto Muhammad Tariq, respondent No. 6 herein.
2. Muhammad Tariq-respondent was employee of Technical Education and Vocational Training Authority, (TEVTA) and, statingly, was Computer Operator. His services were placed on deputation with the Punjab Employees Social Security Institution (PESSI) where he was appointed as Social Security Officer, which was a Grade-16 post. The original post occupied by Muhammad Tariq was a BS-14 post.
3. Notice of the petition was issued to respondent Government of Punjab as well as Muhammad Tariq. Parawise comments were filed on behalf of respondent No. 4. Learned counsel for the parties have been heard today.
4. Learned counsel for the petitioners contended that respondent No. 6 was employee of an Autonomous Body (TEVTA) and he could not have been placed at the disposal of PESSI. It was submitted that Social Security Officer, according to Service Regulations applicable, could be recruited by initial appointment, while remaining 50% are to be filled by transfer from amongst members of service, including 5% by transfer from amongst members of service holding posts of Senior Scale Stenographer (Selection Grade) but in this case respondent No. 6, who was actually serving as Personal Secretary to Secretary, Labour Department, Government of Punjab, was appointed as Social Security Officer in violation of Regulation-9 of the Service Regulations of PESSI.
It was submitted that period of deputation of respondent No. 6 was going to expire on 28.6.2006 and only in order to keep him with the Secretary, Labour Department, he was illegally absorbed in PESSI as Social Security Officer, which could not be done, It was submitted that as appointment of respondent No. 6 was violative of the relevant Service Rules, his appointment should not nullified.
5. Learned counsel for the respondent strenuously argued that petitioners had no locus standi and, moreover, the parent Department of PESSI was Labour Department and Muhammad Tariq was employee of that Department and could be sent on deputation to PESSI. Learned counsel for the PESSI submitted that there were 15 posts of Social Security Officer and only one was filled and rest were available and would be filled in accordance with Rules/Regulations. He, however, was unable to give any reason for by-passing the relevant Service Regulations.
Learned counsel for the petitioners, in order to repel the plea with regard to locus standi of petitioners to file the petition, relied upon Capt. (Retd.) Muhammad Naseem Hijazi Vs. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720).
6. I have heard the learned counsel for the parties at length.
7. The first objection raised by respondents with regard to maintainability of writ petition related to locus standi of petitioners to file the petition, In a similar case, this objection was repelled by Supreme Court of Pakistan in the case of Capt. (Retd.) Muhammad Naseem Hijazi (supra). The Hon'ble Court was pleased to observe at page 1724 of the report as under:-- "7. It is true that Raheel Sarwar Pal, instituted writ petition in capacity of General Secretary, Workers'
Union challenging the status of petitioner to hold office of BPS-19 in G.D.A. For the reasons mentioned in the petition. We are clear in pur mind that no interest of the General Secretary directly or indirectly was involved to challenge the service status of petitioner hor he was aspirant to be a candidate for the post which petitioner was holding in BPS-19. Inasmuch as petitioner did not place any material before this Court to canvass that legal proceedings were initiated by the General Secretary of the Union to vindicate his persona! Interest or the interest of any other member of the union or anyone else who is either interested in his appointment against the post which the petitioner is holding or on account of good performance of the petitioner he became interested for his. Removal from the service to achieve ulterior object. Under Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to call upon him to show that under what authority he is holding the said office, In such-like cases where a writ in the nature of quo warranto is instituted, the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to of the Court, In this behalf reference may be made to Masood-ul-Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against persons who claimed or unusurped an office, franchise or liberty and was intended to inquire by what authority he supported his claim in order that right to office may be determined, It was further held that if is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that he duty should be of a public nature. Similarly in the case of M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228) this Court held that writ of quo warranto could be moved by "any person who even may not be an aggrieved party but is holding a public office created by character or statute by the State". Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir i.e. Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S.) 289), it was observed that any person can move the High Court to challenge the unauthorised occupation of a public office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has also to see if statutory provisions have been violated in making the appointment. The .Invalidity of appointment may arise not only? From one of qualifications but also from violation of legal provision for appointment.
It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others {PLD 1996 SC 324) and Malik Asad Ati and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161). Thus, we are persuaded to hold that Secretary-General Workers' Union i. e. Respondent No. 3 legitimately invoked the jurisdiction of the Court by filing writ in the nature of quo warranto challenging the status of petitioner to hold the office in BPS- 19 in G.D.A."
The above dictum of the Supreme Court supports the case of the petitioners that they have the locus standi to institute the petition.
8. Paragraph-9 of Appendix-A of PESSI (Service) Regulations, 1973 reads as under:-- "Appendix"A"
Name of Post Qualification/Expe rience By Initial recruitment 9 Social Security Officer B.A./B.Sc.
(i) 50% by initial recruitment.
(ii) By transfer among members of service holding post of Office Superintendent on seniority-cum- fitness basis with at leat 5 years' experience as Asst. Social Security Officer.
(iii) 5% by transfer amongst members of service holding post of Senior Scale Stenographer (Selection Grade) on seniority-cum- fitness basis,"
9. The perusal of above Regulation clearly shows that a Social Security Officer can be appointed by initial recruitment. 50% of the posts of Social Security Officers are to be filled by transfer from amongst members of the service holding posts of Office Superintendents. 5% of the post of Social Security Officers are to be filled from amongst members of service holding posts of Senior Scale Stenographer. Admittedly, respondent No. 6 was not member Of PESSI. He was not a regular employee of the PESSI. He was employed in TEVTA and his services were placed on deputation for a period of three years at the disposal of PESSI. The extended period of deputation of respondent is going to expire on 28.6.2006. It has not been denied that respondent is working with the Secretary to the Government of Punjab, Labour Department to the Government of Punjab, Labour Department as his Private Secretary. He is not working in PESSI in any capacity, either.
10. Since the maximum period of deputation of Muhammad Tariq was going to expire on 28.6.2006, he was appointed as Social Security Officer only in order to retain him in the present job. The relevant Service Regulations, obviously, were violated. There were 15 posts of Social Security Officers available in PESSI. 50% of them were to be filled by initial recruitment, while rest were to be filled by promoting members of the service, namely, regular employees of PESSI. The Service Regulations relating to subject were violated. No justification for giving one of the 15 posts to respondent No. 6, has been shown by respondents.
11. For the foregoing reasons, the writ petition is allowed. The appointment of respondent No. 6 as Social Security Officer in PESSI having been done in violation of the Service Regulations is declared to have been so done without lawful authority and would be of no legal effect.