JUDGMENT ' SYED HAMID ALI SHAH, J.--- The present petition, in the nature of quo warranto, has been filed to call in question the appointment of respondent No,2, who vide Notification dated 30- 6-2001, was re employed on contract, for a period of one year, in relaxation of the Environmental Protection Department Service Rules, 1997 and also in violation of the provisions of Re-employment Policy of the Government of the Punjab, as the Director-General Environmental Protection Agency, Punjab, Lahore.
2. It is contended by learned counsel for the petitioner that the appointment of respondent No,2 as the Director-General, Environmental Protection Agency, Punjab, was made in gross violation of the rules i,e, Environmental Protection Department, Punjab Service Rules, 1997, which provide that qualification for the post of Director-General is Ph.D. in Environmental Science and Environmental Engineering or equal qualification from a recognized University with seven years experience in research of management of projects, concerning pollution control relating to air, noise, water, solid and hazardous wastes etc. Learned counsel went on to argue that respondent No,2 does not possess the requisite qualification and he has served in the ministry of information.
He lacks educational qualification as well as requisite experience. While referring to section 4 of the Punjab Civil Servants Act, 1974, it is contended that appointment in the service of the Province is to be made in accordance with the prescribed manner. The manner prescribed by law has not been followed in the appointment of respondent No,2. Learned counsel submitted that the impugned appointment of respondent No,2 has been made ignoring Rule 3(3) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Respondent No,2 being M.A. (Economics), LL.B., does not possess any education concerning Environmental Science or Environmental Engineering, while his service is not concerning pollution control relating to air, water, solid and hazardous wastes.
3. It is contended that as against respondent No,2, the petitioner possesses Ph.D. degree, which was awarded to her in the year 1991. She has held various positions in the relevant field of Environmental Science and Environmental Engineering. She has joined training in the relevant field within the country and abroad. Her research papers and project reports are well-recognized. At present, she is looking after' various projects including Ambient Air Surveillance Programme in big cities of Punjab, Task Force on Sub Soil Water Monitoring, Feasibility Study for Establishment of Multan Tannery Zone, Monitoring of Industrial Gaseous Emission in Punjab and Environmental Education and Communication Programme. Learned counsel has referred to the cases of Maqsood-ul-Hassan v. Khadim PLD 1963 SC 203, University v. CD Government AIR 1965 SC 491, Atta Muhammad v. Settlement Department PLD 1971 SC 61, Muakhan v. M. Sultan PLD 1974 SC 228, Dr. Afzal v. University 1999 PLC. (C.S.) 60, Muhammad Shafi v. Secretary 2000 YLR 206, Muhammad Nasim v. Province 2000 SCMR 1720, Abdul Bashir v. Government PLD 2001 SC 77: Muhammad Azhar v.
Tariq Mahmood 2002 PLC (C.S.) 57, Muhammad Akram v. Province 2002 PLC (C.S.) 1037 and Muhammad Azam v. Government 2004 SCMR 1299 to contend that respondent No,2 does not possess requisite qualification and as such is usurping the public office. His appointment being void ab initio, is required under the law to be declared illegal.
4. Learned counsel for respondent No,2, on the other hand, has submitted that the petition is barred by laches. Respondent No,2 was appointed as the Director-General on 24-6-2006 to 14-6-2007 and second extension was accorded to him from 30-6-2007 to 30-6-2008. His first term was never challenged by any one and as such, at this stage, when respondent No,2 is completing his second term, instant petition is not competent. Learned counsel has referred to the cases of Syed Amjad Ali v. Ch. Amir Afzal (Rtd.)
Chief Engineer, Public Works Department/Ex Officio Secretary Planning and Development, Azad Jammu and Kashmir Government, Mirpur and others PLD 2006 SC (AJ&K) 69 and Muhammad Nawaz Khan, Assistant, T&T, Directorate-General, Islamabad and another v. Muhammad Ijaz Rashid, Assistant T&T Directorate-General, Islamabad and others PLD 1993 SC 10 and has submitted that the writ petition, under reference is required, under the law, to be dismissed on the question of laches. Learned counsel has submitted that respondent No,2, possesses 35 years of experience on the administrative side and is quite capable of managing the task, against which his appointment has been made. Learned counsel has submitted that Punjab Public Service Commission advertised the post and in response thereto various applicants submitted their applications including the petitioner, but none could qualify. Since no person having requisite qualification and experience was found, therefore, the appointment of respondent No,2 was made.
5. Heard learned counsel for the parties and record perused.
6. The requisite qualification for the appointment of Director- General, Environmental Protection Department, Punjab, is Ph.D. in Environmental Science and Environmental Engineering, with seven years experience in research of managing of projects concerning pollution control etc. Respondent No,2 possesses neither the requisite qualification nor the experience. His appointment was made in relaxation of A Environmental Protection Department, Punjab Service Rules, 1997 and the provisions of Re-employment Policy of Government of the Punjab.
7. The Honourable Supreme Court of Pakistan, in the case of Dr. Muhammad Hussain v. Principal Ayub Medical College and another PLD 2003 SC 143, has held that appointment to a particular post, cannot be made in violation of prevalent rules and regulations. The apex Court did not approve the idea of allowing to continue, in the job, a person, who did not possess the requisite qualification. Relevant para. of the judgment is reproduced:-- "The degree of M.Sc. can by no stretch of imagination be equated with M.B. ,B.S. or equivalent thereto irrespective of the fact when the petitioner was appointed or regulation amended. A non-qualified person cannot be appointed as professor as it would not be in the interest of students and institution. The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations.
The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice. We cannot endorse the unique idea and novel concept as put forth by Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that since no other applicant is available the petitioner may be appointed as Professor for the simple reason that he does not possess the requisite qualifications."
8. Being fortified by the above dictum of the apex Court, the appointment of respondent No,2 is declared illegal and the action of the Government in the impugned appointment, is declared without any lawful authority. Respondent No,2 has failed to show that he holds a public office, under the authority of law. The office of D.G., Environmental Protection Agency Punjab, is declared as vacant due to illegal and unlawful appointment of respondent No,2. Respondent No,2 has held the public office, in violation of the rules and policy. The appointment of ineligible person and his holding public office, without requisite qualification, do not attract application of principles of laches to the case in hand. 9.
Resultantly, the post of Director-General, Environmental Protection Agency, Punjab, Lahore, which has been declared as vacant due to invalid appointment, shall be filled through fresh appointment in a prescribed manner and till that appointment, only such person shall be appointed, for interim period, who possesses the requisite qualification.
10. This writ petition is accepted in above terms.