SYED JAMSHED ALI, J.--- Khan Faraz, petitioner No,2, has been working in the Pakistan Tobacco Board as Secretary in BS-19 from 26-8-1998 till his retirement on 19-4-2004. However, on the basis of the recommendation of the Chairman, Pakistan Tobacco Board, he was reemployed on contract basis for a period of two years vide Notification dated 9-10-2004 of the Establishment Division, Government of Pakistan, Mushtaq Ahmed, Assistant Development Officer, and Tahir Raza respondent No,1 challenged the aforesaid appointment on the ground that it was contrary to the relevant rules and the policy of the Government. The petition was resisted but was allowed by the learned High Court with the findings that under the relevant rules the authority competent for re- employment of petitioner No,2 was the President of Pakistan and that the recommendation of the Chairman of the Board for re-employment of petitioner No,2 in the absence of the recommendation of the Selection Board was illegal.
2. The learned counsel for the petitioner submits:--
(a) That the competent authority in the Federal Government for appointment in question was the Prime Minister in accordance with the Rules of Business and approval of the Prime Minister was obtained on the proposal initiated by the Chairman of the Pakistan Tobacco Board which was routed through the Commerce Ministry.
(b) Rule of Business having been framed under the constitution will have precedence over the Pakistan Tobacco Service Rules, 1985, framed under section 30 of the Pakistan Tobacco Board Ordinance, 1968 (I of 1968).
(c) It was not pleaded in the writ that the President alone was the competent authority and therefore, the petitioners had no opportunity to meet the said objection.
(d) The impugned Notification of the Federal Go'vernment was a complete answer (warrant) for petitioner No,2 to hold the post and the learned High Court could not have peeped into the documents of the Government which related to its internal business.
(e) The Notification was duly endorsed to the President of Pakistan and it was substantial compliance of rule 20 of the aforesaid rules.
(f) Any infirmity of technical nature would not invalidate the Notification of appointment of petitioner No,2.
(g) Petitioner No,2 has rendered invaluable services and his further retention was in public interest.
3. He maintains that in any case tenure of petitioner No,2 will expire on 8-10-2006, neither the Tobacco Board nor petitioner No,2 is interested in further extension of his services and in case petitioner No,2 has to vacate the office forthwith it will create a void and ensuing administrative problems for the petitioner-Board. And, therefore, petitioner No,2 may be allowed to complete the extended term.
4. We have considered the submissions made by the learned counsel for the petitioner. The appointment in question is governed by the Pakistan Tobacco Board (Service) Rules, 1985 which have been framed under section 30 of Pakistan Tobacco Board Ordinance, 1968 (I of 1968) by the Federal Government and are, thus, statutory. Rule 20 is reproduced hereunder:-- "20. Re-employment.--- Any employee may not be re-employed after superannuation unless such re-employment is necessary in public interest and is made with the approval of the President of Pakistan.
5. Perusal of the said rule shows that not only it is the President of Pakistan who is the re-pository of discretion but also that re-employment is permissible only in public interest. Merely because petitioner No,2 was described as hardworking and efficient officer did not authorise the Federal Government to bye-pass the said rule.
6. The learned counsel relied on the Rules of Business to contend that Prime Minister was the competent authority. He, however, did not produce before us any material to demonstrate that on the date of approval of the Prime Minister to the impugned re-employment, he was competent authority for the posts in Grad-19 in the autonomous bodies. On the existing record it is not possible for us to upset the finding of the learned High Court that the President of Pakistan was the competent authority. Endorsement of the copy of the impugned notification to the office of the President could hardly be said to be compliance of rule 20 above said.
7. None of the other contentions of the learned counsel has any merit. In fact it was in reply to the constitutional petition that respondent No,2 (Ministry of Commerce) had taken the stand that appointment in question was approved by the Prime Minster. Therefore, the contention of the learned counsel that the learned High Court had been doing a roving inquiry in respect of the internal business of the Government is beyond our comprehension. The writ of quo warranto, which is of course, is now an obselete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office. It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to the said office. Therefore, keeping in view the nature of such proceedings the learned High Court can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record and this exercise can be done suo motu even if its attention is not drawn by the parties concerned.
8. While considering the aforesaid principle in Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 311, this Court reiterated the following observations from The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725:-- "To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction. The objection raised by Mr. Ghias Mohammad that the appellants or the Court suo motu could not make resort to any document on the record of the Collector, the Trust and the University which was not relied upon in the High Court has, therefore, no substance."
9. It may be noted that the above said observations were made in the litigation which was not inquisitorial as in case of a writ of quo warranto. We also cannot help observing that the Federal Government has not challenged the order of the learned High Curt and this petition has been brought by the Pakistan Tobacco Board and the Secretary. This singular fact speaks loud that it is not the Federal Government who is interested to retain petitioner No,2, it is in fact the Pakistan Tobacco Board, who had initiated the proposal, who want to see petitioner No,2 in their service.
10. The other submission that mere warrant i,e, Notification of the Federal Government is sufficient answer to the writ of quo warranto, has no merit. Mere issuance of notification was not enough. It has to be demonstrated by the petitioners that his appointment was in accordance with law and the rules.
11. In support of the view we have formal we will like to refer to some leading judgments on the issue. The first to be noted is Dr. Sher Bahadur Khan Panee, Deputy Inspector-General of Prisons, Northern Range, Peshawar v. The Government of West Pakistan through the Chief Secretary, West Pakistan Government, Lahore PLD 1956 Pesh.
77. In the said case services of the doctor were extended for one year by the Chief Minister, N.-W.F.P.
Which was challenged before the learned High Court in a writ of quo warranto. The order did not state that it was being passed on public grounds. Before the learned High Court it was argued that doctor Saeed Ahmed was an efficient and competent doctor and in view of acute shortage of doctors his retention in service was justified. The argument was repelled with the following observations:-- "It will be futile to consider these grounds in relation to the retention of Dr. Saeed Ahmad in service, because they are not recorded in writing in the order of Sardar Bahadur Khan, and at the utmost it can be said that they are the invention of the clever brain of the learned counsel himself. In all probability these grounds did not ever occur to Sardar Bahadur Khan. In any case grounds Nos.1 and 2 would be the private grounds concerning Dr. Seed Ahmad alone, as distinguished from "public ground" mentioned in the rule in question. As regards the third ground, there is nothing on the record to show that there is any death of efficient and competent doctors in Pakistan, or if there is any, it can be removed effectively by retaining the services of Dr. Saeed Ahmad in the Medical Department. Surely, like everybody else in the world. Dr. Saeed Ahmad is also not indispensable.
The order of his retention in service, thus, is without jurisdiction, and must be held as void in law."
12. In Mr. A.R. Azar, Deputy Chief Engineer, West, North-Western Railway, Lahore and others v. The Federation of Pakistan and another PLD 1958 Lah. 185, the President of Pakistan had allowed extension to the Railway employee which was not permissible according to the applicable rules. It was challenged in a writ quo warranto by a person who was waiting for his promotion. In defence to the said petition, it was argued that since the President was rule-making authority, it should be presumed that the rules were relaxed. The contention was repelled with the following observations:-- "It was contended that as in the present case the President was the rule-making authority and as he passed an order which was strictly not in accordance with the relevant rule, it should be presumed that, for the purpose of this case, the President had amended the rule which, therefore, should not be considered to stand in the way of his order. With all aspects, we venture to think that this interpretation will violate the sanctity of rules."
13. The aforesaid two cases have been referred by us to demonstrate that the discretion of even the highest state functionary is circumscribed by law and as against their whims or liking, compulsion or expediency it is the will of the Legislature which is to prevail. Unless those in authority starting from the top are willing to surrender their will to the rule of law, the latter will remain confined to the casuality ward. The public functionaries, who are responsible to process these cases either do not have adequate time to examine the rules properly or the courage to post the competent authority i,e, President of the Prime Minister or the Chief Minister with the correct legal position.
14. As to the question whether mere warrant is sufficient, we will like to refer to Muhammad Azam Malik v. Ghulam Murtaza Buttar and 3 others 1993 PLC (C.S.) 253, a judgment of the learned Lahore High Court. In this case the appointment of an officer in Faisalabad Development Authority in BS-18 and 19 was called in question. The learned High Court had interfered with the following observations:-- "It is true that the appointment of staff of the Authority and their promotion falls within the exclusive power of the authority and the officers who have been delegated with such power, but where a person is recruited in violation of the statutory rules on the subject, writ of quo warranto is available."
15. Similar view was taken in The University of Mysore and another v. C.D. Govinda Rao and another AIR 1965 SC 491 and it was observed:-- "Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases; persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warrantor is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus, clear that before a citizen can claim a writ of quo warrantor, he must satisfy the Court, inter alia, that the office in question is public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." (emphasis supplied).
16. We have considered the request of learned counsel that petitioner No,2 may be allowed to complete his tenure which will expire on 8-10-2006. Such a course was adopted by the learned Lahore High Court in the case A.R. Azar (supra). In the said case, while the writ petition decided on 22-11-1956 the extended tenure of the officer was to expire on 30-11-1956 (i,e, after 8 days). However, in this case, a period of four months is still there for completion of the extended tenure of the petitioner No,2. Further, the writ petition was filed by Mushtaq Ahmad and Tahir Raza but before this Court only Tahir Raza, has been impleaded. Moreover, even Tahir Raza, is not before this Court at this stage. Keeping in view the aforesaid circumstances, we are not inclined to allow the request made.
17. For what has been stated above, we do not find any merit in this petition which is dismissed.
Leave declined.