' SAYED ZAHID HUSSAIN, J.--- Writ Petition No,12846 of 2005 in the nature of quo warranto was filed by Muhammad Shafique against Muhammad Shafique Bajwa, respondent No,4, that "he is not eligible to hold the post against which he is now working and the respondents Nos.1 and 2 be directed to withdraw the absorption order, dated 30-6-2003 as well as deputation of the respondent No,4". The post which Muhammad Shafique Bajwa, respondent No,4 therein, is holding is that of Superintendent (BS-16), Lahore Museum, Lahore.
2. It may be mentioned that Muhammad Shafique Bajwa was Accounts Clerk (BS-7) in Government High School, Mandi Kalay Ki, District Hafizabad who was taken on deputation as Superintendent in (BS-16) in the Lahore Museum and was absorbed in that post subsequently. The interim orders passed in that petition by Honourable Mr. Justice Syed Jamshed Ali (as his Lordship then was) took note of the salient features of the case. The admitting order, dated 12-9-2005 which I must say so with respect is quite elaborate and reads as follows:--- "According to Lahore Museum Regulations, 1987 the post of Superintendent is primarily, a promotion post for which the Assistants, Store-Keepers and Accountants of the Lahore Museum are eligible. In case no suitable incumbent is available then it could be filled by initial recruitment or by transfer. In this case respondent No,4, an official of the Education Department in District Hafizabad in grade-7, was appointed as Superintendent (BS-16) and later absorbed in the service of the Lahore Museum. This writ petition has laid information before this Court in the nature of quo warranto.
(2) I have some reservations about the conduct of the then Director, Lahore Museum (Dr. Liaqat Ali Niazi) in whose tenure the disputed appointment was made. He is presently Secretary Archive S&GAD. He was accordingly summoned by me to clear doubt. I had entertained about his conduct.
(3) The first reservation was that respondent No,4 does not possess the requisite qualification of B.A. Necessary for appointment to the post of Superintendent, even by transfer, yet he was appointed to the post in question. His reply was that the Director was competent to relax the rules.
It may be observed at this stage that power to relax the rules should be exercised to remove hardship rather than to dole out a favour in the matter of public employment. I also questioned him whether before making the appointment in question any of the officials of the department of the eligible category was considered. His reply was in the negative. The original file has been perused. It was on the application dated 25-2-2003 of respondent No,4 that Dr. Liaqat Ali Niazi passed an order "allowed to join on deputation as Office Superintendent in BS-16". This order was passed without consulting the Selection Committee and without following the deputation policy of the Government of the Punjab. Respondent No,4 then applied on 21-6-2003 for his absorption in BS-16 in the Lahore Museum on which the Standing Committee considered the case on 28-6-2003.
It comprised Dr. Liaqat Ali Khan Niazi, Director (Chairman), Waseem Ahmad, Senior Chemist (Member), Humera Alam (Member) and Abdul Rehman Khan Lodhi, Assistant Director (Member).
Photo copy of the minutes of the meeting was produced before the Court by the learned counsel.
However, these are not on the original record . When confronted Dr. Liaqat Ali Niazi took up the position that it was a forged document. Instead, on the record are the minutes of the meeting of 28-6-2003 signed by Dr. Liaqat Ali Khan Niazi, Abdul Rehman Khan Lodhi, Prof. Ijaz Butt and Mr. Shafqat Jalil, Deputy Secretary IC&YA Department.
(4) I could, however, see an order passed by Mr. Niazi on 3-7-2003 according to which the accounts branch of the Lahore Museum was badly suffering in the absence of competent official, accordingly, the requisite qualification was relaxed and respondent No,4 was found to be a suitable person. It was, however, posterior to the meeting held on 28-6-2003. There are certain principles for the exercise of discretion which have to be kept in view. I am constrained to observe that prima facie he has acted in the matter clearly contrary to law and in an irresponsible manner, perhaps assuming that the public employment is the bounty of the State or its functionaries.
(5) Mr. Shafqat Jalil, the then Deputy Secretary (Admn.) Information and Culture Affairs Department of the Government of the Punjab now as Additional Press Secretary in the Prime Minister's House is in attendance. He was shown his signatures on the minutes of the meeting dated 28-6-2003 available on the original record . He stated that the document bears his signatures.
(6) Prima facie respondent No,4 was not eligible for the post in question and on the date of the meeting of the Selection Committee (28-6-2003) no order of relaxation in his favour was in existence. Even if there was one, unless it was found that no incumbent of the department was suitable for the said post it could not have been filled in by transfer. The matter, therefore, requires consideration.
(7) Admit. Notice.
(8) I have noted with regret that Mr. Shafqat Jalil representing the Government of the Punjab, did not even bother to find out whether respondent No,1 was at all eligible to be appointed as Superintendent (BS-16). It appears that he acted only as a rubber stamp to the decision taken by Dr. Liaqat Ali Niazi. Besides the judicial determination by this Court it is a matter to be inquired into on the administrative side whether the minutes of the meeting held on 28-6-2003 on the original record is genuine document in view of the photo copy of the minutes of the meeting dated 28-6- 2003 in which neither Mr. Shafqat Jalil nor Prof. Ijaz Butt was shown to be present. The conduct of Mr. Niazi in making appointment of a Grade-7 officer to Grade-16 post, prima facie contrary to law, is also required to be inquired into.
(9) A copy of this order along with the copies of the minutes of the meeting dated 28-6-2003 shall be sent to the Chief Secretary, Punjab for an inquiry into the matter. He will report action taken in the matter to the Additional Registrar of this Court.
Civil Miscellaneous No,2 of 2005
(10) I am not inclined to suspend the order of appointment of respondent No,4 because it will amount to giving main relief and may also disrupt the working of the department. It is, however, directed that the main petition shall be listed for hearing in the month of October, 2005."
3. In view of the above observations the matter was considered on administrative side and it was pointed by the Regulation Wing S&GA Department that "the Regulation Wing, is of the view that deputation of Mr. Shafique Bajwa, Accounts Clerk (BS-7) against the post of Superintendent BS-16 and his subsequent absorption against the said post is improper and it is proposed that:- "(i) Mr. Muhammad Shafique Bajwa, Accounts Clerk (BS-7) may be repatriated to his parent department after serving him with a notice about the proposed action and after passing a speaking order to this effect.
(ii) The post of Superintendent (BS-16), Lahore Museum, may be filled through promotion and if no one suitable is available then by initial recruitment or by transfer from Other departments as provided under the service rules for the post;
(iii) Since, the matter stands thrashed/scrutinized threadbare and does not warrant any further inquiry, the Honourable Lahore High Court may be informed accordingly in pursuance of its directions given to the Chief Secretary referred to in para.16(vi)/ante."
4. When the matter was placed before the Chief Secretary, Punjab, The Chairman, Board of Governors, Lahore Museum Lahore, the same was approved. As a result, order, dated 17-7-2006 was conveyed to the Director Lahore Museum, Lahore that "the Chief Secretary/Chairman Board of Governor's Lahore Museum has approved the proposal of repatriation of Mr. Shafiq Bajwa, Superintendent, Lahore Museum to Education Department". This order has been assailed by Mr. Muhammad Shafique Bajwa through this petition.
5. Order, dated 17-7-2006 was, however, not implemented in view of the pendency of Writ Petition No,12846 of 2005. The matter was again considered on administrative side and this time the Law Department was also consulted. On consideration of relevant rules and regulations i,e, the rule 15(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and Lahore Museum Regulations, 1987, the Secretary Law, Government of the Punjab concurred with the view taken by the Regulation Wing. The Chief Secretary, thus, on approval of the matter asked for necessary action and the Court to be informed accordingly. This is vide letter, dated 19-10-2006, which has also been placed on record .
6. The learned counsel for Muhammad Shafique Bajwa contends that he was appointed as Superintendent (BS-16) in Lahore Museum, Lahore on deputation and absorbed later on which appointment was legal in all respects and that writ of quo warranto cannot be issued. He has made reference to Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.)
1328; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Prof. Muhammad Wali Khan and another v. Secretary, Government of Sindh and others 2003 MLD 719; Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others 2005 SCMR 1829 and Province of Punjab thr9ugh Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 in this context. He also cites some appointments made in the Museum, in the past.
7. The learned Law Officer of the Province has produced departmental file to show that on consideration of the matter it has been found that appointment of Muhammad Shafique Bajwa as Superintendent in BS-16 was violative of law whose repatriation has been ordered lawfully to his parent department i,e, Education Department.
8. Admittedly Muhammad Shafique Bajwa was Accounts Clerk (BS-7) in Government High School, Mandi Kalay Ki, District Hafizabad when he made application, dated 25-2-2003 to the Director, Lahore Museum, Lahore for appointment as Superintendent (BS-16) on deputation. The application was blessed with approval on 1-3-2003. But terms and conditions of his deputation were conveyed later on through Office Order dated 6-6-2003 w,e,f, 1-3-2003. Such order purports to have been issued under Rules 9 and 10 of Lahore Museum Regulations, 1987. He then makes an application dated 22-6-2003 for absorption in the said post i,e, Superintendent (BS-16), which application was also allowed and he was ordered to be absorbed on 30-6-2003, on permanent basis. As noted above, since the Department itself has found that his deputation and absorption was contrary to law and he has been ordered to be repatriated, the principles governing the issuance of writ of quo warranto lose their significance. That is why Mr. Muhammad Shafique Bajwa has challenged his order of repatriation.
9. The flawed and illegal appointment of Mr. Muhammad Shafique Bajwa is evident from the fact that requisite qualification for the post of Superintendent (BS-16) is graduation whereas he was only intermediate. It was also violative of the policy that a Government servant will not be considered for deputation against a higher post in the borrowing organization unless he was due for promotion in his parent department. Even the Selection Committee which considered the absorption of Muhammad Shafique Bajwa was not legally constituted as there was no such approval by the Board of Governors, Lahore Museum, Lahore/ Chief Secretary. Regulations 9 and 10 of the Lahore Museum Regulations, 1987 which is being pressed for justifying his absorption is per se not attracted and is being misconstrued inasmuch as the same relates to initial appointments whereas the post of Superintendent is primarily a promotion post and for any such appointment, a Bachelor Degree from a recognized University with at least 5 years of experience was required.
Muhammad Shafique Bajwa lacked all such qualifications and did not fulfil the eligibility/criteria for appointment/absorption on a post he is holding. Thus, order about his repatriation to Education Department, dated 17-7-2006 and ultimate order of 19-10-2006 hardly can be regarded as the one passed without lawful authority.
10. The past instances of erratic appointments cannot be made a precedent to be followed for all times to come in future. Nor the argument of discrimination be built on that basis. A mistake if committed in the past and not pointed out/assailed, cannot be allowed to become a I precedent and perpetuated. The contention of the learned counsel thus, cannot be countenanced.
' The petition of Muhammad Shafique Bajwa is without merit and liable to be dismissed.
' In view of the above Writ Petition No,8543 of 2006 is dismissed whereas Writ Petition No,12846 of 2005 stands disposed of as having become infructuous. No order as to costs.